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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Complaints Regarding Various Television Broadcasts Between )
February 2, 2002 and
March 8, 2005 )
)
NOTICES OF APPARENT LIABILITY AND
MEMORANDUM OPINION AND ORDER
Adopted: February 21, 2006 Released: March 15, 2006
By the Commission: Chairman Martin, Commissioners Copps and Tate issuing
separate statements; Commissioner Adelstein concurring, dissenting in part
and issuing a statement.
Table of Contents
Heading Paragraph #
I. INTRODUCTION 1
II. BACKGROUND 8
III. DISCUSSION 22
A. Notices of Apparent Liability for Forfeiture 22
1. "The Surreal Life 2" (February 8, 2004) 22
2. "Con El Corazon En La Mano" (October 9, 2004) 33
3. "Fernando Hidalgo Show" (October 19, 2004) 43
4. "Video Musicales" (February 2-March 8, 2002) 52
5. "The Blues: Godfathers and Sons" (March 11, 2004) 72
6. "The Pursuit of D.B. Cooper" (March 15, 2003) 87
B. Indecent And/Or Profane Broadcasts But No Forfeiture Proposed 100
1. "The 2002 Billboard Music Awards" (December 9, 2002) 101
2. "The 2003 Billboard Music Awards" (December 10, 2003) 112
3. "NYPD Blue" (various dates between January 14 and May 6, 2003) 125
4. "The Early Show" (December 13, 2004) 137
C. Broadcasts That Do Not Violate Indecency/Profanity/Obscenity
Restrictions 146
1. "Alias" (January 5, 2005) 147
2. "Will and Grace" (November 11, 2004) 153
3. "Two and a Half Men" (February 21, 2005) 160
4. "Committed" (March 8, 2005) 163
5. "Golden Phoenix Hotel & Casino Commercial" (February 19, 2005) 166
6. "The Oprah Winfrey Show" (March 18, 2004) 173
7. Political Advertisement (October 14, 2004) 180
8. "The Amazing Race 6" (December 21, 2004) 188
9. Various Programs Containing Expletives (various dates between August
31, 2004 and February 28, 2005) 193
10. "Family Guy" (January 16, 2005) 200
11. "The Academy Awards" (February 27, 2005) 206
12. "8 Simple Rules" (February 4, 2005) 210
13. "The Today Show" (January 11, 2005) 213
14. "The Simpsons" (September 9, 2004) 219
15. "America's Funniest Home Videos" (February 5, 2005) 224
16. "Green Bay Packers v. Minnesota Vikings" (January 9, 2005) 227
17. "Medium" (January 17, 2005) 230
IV. ordering clauses 233
I. INTRODUCTION
1. The Commission has regulated the broadcast of indecent programming for
decades, and our authority in this area has long been upheld as
constitutional by the U.S. Supreme Court. During the last few years,
however, we have witnessed increasing public unease with the nature of
broadcast material. In particular, Americans have become more
concerned about the content of television programming, with the number
of complaints annually received by the Commission rising from fewer
than 50 in 2000 to approximately 1.4 million in 2004. At the same
time, broadcasters have sought guidance from the Commission about our
rules, arguing that they lack certainty regarding the meaning of our
indecency and profanity standards. The decisions we issue today
respond to both of these concerns.
2. In these decisions, we address hundreds of thousands of complaints
alleging that various broadcast television programs aired between
February 2002 and March 2005 are indecent, profane, and/or obscene.
The cases we resolve today represent a broad range of factual
patterns. Taken both individually and as a whole, we believe that they
will provide substantial guidance to broadcasters and the public about
the types of programming that are impermissible under our indecency
standard. The cases also further refine our standard regarding the use
of profane language in the broadcast medium and illustrate the types
of language proscribed by that standard. Overall, the decisions
demonstrate repeatedly that we must always look to the context in
which words or images occur to determine whether they are indecent. In
addition, while we find certain highly offensive language to be
presumptively profane, we also take care to emphasize that such words
may not be profane in specified contexts.
3. Section II below is devoted to providing a full description of the
Commission's standards for analyzing whether programming is indecent
and/or profane and referencing the legal sources upon which these
standards are based. In Section II, we also fully describe our
methodology for calculating proposed forfeitures against broadcast
licensees when there has been an apparent violation of our
prohibitions against indecency and/or profanity.
4. In Section III, we apply these indecency and/or profanity standards to
the complaints before us on a case-by-case basis. We begin with cases
in which we have determined that the broadcast licensee apparently
aired indecent and/or profane material and propose forfeitures against
the licensee. The monetary forfeitures proposed demonstrate that the
Commission will exercise its statutory authority to ensure that the
broadcast of indecent and/or profane material will be appropriately
sanctioned.
5. Section III next addresses cases in which we find the complained-of
material indecent and/or profane but do not propose taking action
against the licensee. In these cases, the licensee was not on notice
at the time of the broadcast that we would deem the relevant material
indecent or profane. For example, we hold that a single use of the
word "shit" and its variants (the "S-Word") in the contexts presented
is both indecent and profane. However, we do not propose adverse
action in these cases because we have not previously announced this
conclusion.
6. Section III concludes with a discussion of a number of cases in which
we determine that various words, phrases, or scenes that occur in a
variety of programs, while undoubtedly upsetting to some viewers, do
not warrant action against the broadcast station licensee. We reach
these determinations either because the complained-of material is not
within the scope of our indecency or profanity definitions or because,
even if it is within the scope of our indecency definition, it is not,
in the contexts before us, patently offensive as measured by
contemporary community standards for the broadcast medium.
7. Together, these decisions demonstrate the Commission's strong
commitment to fulfilling the responsibility vested in us by Congress
within the parameters of the United States Constitution. We believe
that issuing these decisions as a single order will enable
broadcasters to better understand the boundaries of our indecency and
profanity standards, while at the same time responding to the concerns
expressed by hundreds of thousands of citizens in complaints filed
with the Commission. In the end, our primary objective is to fulfill
our statutory obligation to enforce the law in this area and to do so
in a clear and consistent manner.
II. BACKGROUND
8. Section 1464 of title 18, United States Code, prohibits the broadcast
of obscene, indecent, or profane programming. The FCC rules
implementing that statute, a subsequent statute establishing a "safe
harbor" during certain hours, and the Communications Act of 1934, as
amended (the "Act"), prohibit radio and television stations from
broadcasting obscene material at any time and indecent material
between 6 a.m. and 10 p.m. Broadcasters also may not air profane
material during this time period.
9. The federal prohibition against the broadcast of indecent and profane
material is longstanding. In the Radio Act of 1927, Congress first
provided that "[n]o person within the jurisdiction of the United
States shall utter any obscene, indecent, or profane language by means
of radio communication." This prohibition was then reenacted as part
of the Act and was moved subsequently to title 18 of the United States
Code in 1948.
10. Indecency Analysis. The federal courts have consistently upheld
Congress's authority to regulate the broadcast of indecent material,
as well as the Commission's interpretation and implementation of the
governing statute. In 1978, the U.S. Supreme Court, in upholding the
constitutionality of the prohibition against the broadcast of indecent
material, concluded that "special treatment of indecent broadcasting"
was appropriate. The Court noted that the Commission's authority to
regulate indecent broadcast material is justified by two primary
considerations, both of which are equally, if not more, applicable
today. First, the broadcast media occupy "a uniquely pervasive
presence in the lives of all Americans." Indecent material "presented
over the airwaves confronts the citizen, not only in public, but also
in the privacy of their own home, where the individual's right to be
left alone plainly outweighs the First Amendment rights of an
intruder." "Because the broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the listener or viewer
from unexpected program content." Indeed, while the Supreme Court's
observation regarding the pervasiveness of the broadcast media dates
back to 1978, the ubiquity of television in the lives of Americans has
only increased in the intervening 28 years. Second, the Supreme Court
observed that "broadcasting is uniquely accessible to children, even
those too young to read." This finding is even more relevant today
given the increased accessibility of the broadcast media to children.
11. Enforcement of the provisions restricting the broadcast of indecent,
obscene, or profane material is an important component of the
Commission's overall responsibility over broadcast radio and
television operations. At the same time, however, the Commission must
be mindful of the First Amendment to the United States Constitution
and section 326 of the Act, which prohibit the Commission from
censoring program material or interfering with broadcasters' free
speech rights. As such, in making indecency determinations, the
Commission proceeds cautiously and with appropriate restraint.
12. The Commission defines indecent speech as material that, in context,
depicts or describes sexual or excretory activities or organs in terms
patently offensive as measured by contemporary community standards for
the broadcast medium.
Indecency findings involve at least two fundamental determinations. First,
the material alleged to be indecent must fall within the subject matter
scope of our indecency definition--that is, the material must describe or
depict sexual or excretory organs or activities. . . . Second, the
broadcast must be patently offensive as measured by contemporary community
standards for the broadcast medium.
13. In our assessment of whether broadcast material is patently offensive,
"the full context in which the material appeared is critically
important." Three principal factors are significant to this contextual
analysis: (1) the explicitness or graphic nature of the description;
(2) whether the material dwells on or repeats at length descriptions
of sexual or excretory organs or activities; and (3) whether the
material panders to, titillates, or shocks the audience. In examining
these three factors, we must weigh and balance them on a case-by-case
basis to determine whether the broadcast material is patently
offensive because "[e]ach indecency case presents its own particular
mix of these, and possibly, other factors." In particular cases, one
or two of the factors may outweigh the others, either rendering the
broadcast material patently offensive and consequently indecent, or,
alternatively, removing the broadcast material from the realm of
indecency.
14. In each of the cases below in which the complaint alleges indecency,
we apply the two-pronged indecency analysis described above.
Specifically, we first determine whether the complained-of material is
within the scope of our indecency definition; i.e., whether it
describes or depicts sexual or excretory activities or organs. If so,
we then turn to the three principal factors of the second prong to
determine whether, taken in context, the material is patently
offensive as measured by contemporary community standards for the
broadcast medium.
15. As evidenced below, our contextual analysis takes into account the
manner and purpose of broadcast material. For example, material that
panders to, titillates, or shocks the audience is treated quite
differently than material that is primarily used to educate or inform
the audience. In particular, we recognize the need for caution with
respect to complaints implicating the editorial judgment of broadcast
licensees in presenting news and public affairs programming, as these
matters are at the core of the First Amendment's free press guarantee.
16. Profanity Analysis. In the Golden Globe Awards Order, we concluded
that the "F-Word" constituted "profane language" within the meaning of
18 U.S.C. S 1464 because, in context, it involved vulgar and coarse
language "so grossly offensive to members of the public who actually
hear it as to amount to a nuisance." We indicated in that decision
that we would analyze other potentially profane words on a
case-by-case basis.
17. Just as with indecent broadcasting, we are mindful that, in exercising
our statutory authority over profane broadcast material, we must
proceed with "due respect for the high value our Constitution places
on freedom and choice in what the people say and hear." In the Golden
Globe Awards Order, we interpreted profanity, citing a decision by the
U.S. Court of Appeals for the Seventh Circuit, as "denoting certain of
those personally reviling epithets naturally tending to provoke
violent resentment or denoting language so grossly offensive to
members of the public who actually hear it as to amount to a
nuisance." In the context of broadcasting, however, it is not clear
whether the "fighting words" portion of this definition applies. Given
the nature of television and radio, it appears unlikely that broadcast
material would provoke immediate violence between those uttering such
words and the audience. Therefore, in the cases below, and as a
general matter, we will analyze potentially profane language with
respect to whether it is "so grossly offensive as to constitute a
nuisance."
18. Additionally, given the sensitive First Amendment implications in this
area, we establish a presumption that our regulation of profane
language will be limited to the universe of words that are sexual or
excretory in nature or are derived from such terms. As our regulation
of profane language is based on a nuisance rationale similar to that
which forms the basis for indecency regulation, we believe that the
same limitation on the scope of our regulation is appropriate and
rests upon sound constitutional footing. Although we recognize that
additional words, such as language conveying racial or religious
epithets, are considered offensive by most Americans, we intend to
avoid extending the bounds of profanity to reach such language given
constitutional considerations.
19. We conclude below that certain vulgar sexual or excretory terms are so
grossly offensive to members of the public that they amount to a
nuisance and are presumptively profane. We reserve that distinction
for the most offensive words in the English language, the broadcast of
which are likely to shock the viewer and disturb the peace and quiet
of the home. We also note, however, that in rare cases, language that
is presumptively profane will not be found to be profane where it is
demonstrably essential to the nature of an artistic or educational
work or essential to informing viewers on a matter of public
importance. As detailed below, we caution that we will find this
exception to be applicable only in unusual circumstances.
20. Forfeiture Calculations. The Notices of Apparent Liability for
Forfeiture ("NALs") contained in this decision are issued pursuant to
section 503(b)(1) of the Act. Under that provision, any person who is
determined by the Commission to have willfully or repeatedly failed to
comply with any provision of the Act or any rule, regulation, or order
issued by the Commission or to have violated section 1464 of title 18,
United States Code, shall be liable to the United States for a
forfeiture penalty. Section 312(f)(1) of the Act defines willful as
"the conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the section 503(b) context.
The term "repeated" means that the action was committed or omitted
more than once, or lasts more than one day. We emphasize that every
licensee is responsible for the decision to air particular programming
and will be held accountable for violating federal restrictions on the
willful or repeated broadcast of obscene, indecent, or profane
material.
21. The Commission's Forfeiture Policy Statement establishes a base
forfeiture amount of $7,000 for the transmission of indecent or
obscene materials. The Forfeiture Policy Statement also specifies that
the Commission shall adjust a forfeiture based upon consideration of
the factors enumerated in section 503(b)(2)(D), such as "the nature,
circumstances, extent and gravity of the violation, and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
require." For the cases in this decision, the statutory maximum
forfeiture amount for each apparent violation occurring prior to
September 7, 2004 was $27,500. The statutory maximum forfeiture amount
for violations discussed in this decision occurring on or after
September 7, 2004 is $32,500. Consistent with the Forfeiture Policy
Statement, we calculate forfeiture amounts by: (1) determining whether
to use the base statutory amount, the maximum statutory amount, or a
different figure below the statutory maximum based upon consideration
of the factors enumerated in section 503(b)(2)(D); and (2) multiplying
that figure by the number of violations. Where repeated violations
have occurred but the resulting total forfeiture amount would be
excessive to achieve the appropriate level of punishment and
deterrence, we also may adjust the total proposed forfeiture according
to the stated statutory factors.
III. DISCUSSION
A. Notices of Apparent Liability for Forfeiture
1. "The Surreal Life 2" (February 8, 2004)
22. The Programming. The Commission received a complaint alleging that
WBDC Broadcasting, Inc. ("WBDC Broadcasting"), licensee of Station
WBDC-TV, Washington, D.C., and other station affiliates of the WB
Television Network (the "WB Network"), broadcast indecent material
during the Pool Party Episode of the program "The Surreal Life 2" on
February 8, 2004, at 9:00 p.m. Eastern Standard Time. On September 27,
2004, the Bureau sent a letter of inquiry to the WB Network concerning
this and other episodes of "The Surreal Life 2." In response to the
letter of inquiry, the WB Network stated, inter alia, that Station
WBDC-TV aired the complained-of episode on February 8, 2004 at 9:00
p.m. Eastern Standard Time.
23. "The Surreal Life 2" is a "reality-based" television program in which
six cast members from diverse backgrounds share a luxurious house for
12 days. One of the six cast members, Ron Jeremy, is a veteran actor
in pornographic movies. In the Pool Party Episode, he gives a pool
party for about twenty of his friends in the pornographic movie
industry. During the ten-minute sequence depicting this party, the
episode displays approximately 20 pixilated views of various female
guests' nude breasts and, in one case, a female guest's entire nude
body. In addition, there are numerous other examples of sexual images
and innuendo, including two brief, pixilated scenes in which Mr.
Jeremy touches or kisses a female guest's bare breast; a scene in
which Andy Dick, another guest at the party, places his mouth on the
top portion of a female cast member's breast and makes a comic sound,
and the female cast member explains that they are just friends;
another scene in which Andy Dick kisses a female guest's pixilated
bare breast and spanks her buttocks, stating jestingly that she should
go to her room and he'll join her there shortly; a scene where a
female guest appears to sexually proposition a male cast member; and a
scene in which another female cast member suggests that the party
attendees play a game of "strip truth or dare to get naked," saying to
Ron Jeremy, "[c]ome on porn star, everyone knows about your big
[bleep], though I haven't seen it."
24. Indecency Analysis. We find that the material meets the first prong of
the indecency test. As noted above, the episode contains several
pixilated views of nude breasts and a nude body, as well as other
sexual images and innuendo described above. All of this material
depicts or describes sexual activities and organs.
25. Moving to the second prong of our indecency test, we also find that
the material is, in the context presented here, patently offensive as
measured by contemporary community standards for the broadcast medium.
The first of the three principal factors in our contextual analysis
weighs in favor of a finding of patent offensiveness because the
material is explicit and graphic. In this regard, the mere pixilation
of sexual organs is not necessarily determinative under our analysis
because the material must be assessed in its full context. Here,
despite the obscured nature of the nudity, it is unmistakable that
partygoers are exposing and discussing sexual organs as well as
participating in sexual activities, such as when Mr. Jeremy touches or
kisses an unclothed female breast. Indeed, a child watching this
program could easily discern that nude or partially nude adults are
attending a party and participating in, or soliciting participation
in, sexual activities. We, therefore, find that the complained-of
material is explicit and graphic.
26. With respect to the second prong of our contextual analysis, we find
that the broadcast dwells on and repeats the sexual material. We have
repeatedly held that repetition and persistent focus on sexual or
excretory material is a relevant factor in evaluating the potential
offensiveness of broadcasts. In this case, the presentation of
approximately 20 views of pixilated female nudity within a ten-minute
segment, together with other depictions or descriptions of sexual
organs or activities during the same episode, demonstrates that this
episode dwells upon and repeats sexual material.
27. Looking to the final prong of our test, we conclude that the broadcast
material is presented in a manner that panders to, titillates, and
shocks the audience. Among other things, the material depicts male
cast members and party guests ogling, fondling, and kissing female
party guests' bare breasts, a male party guest spanking a female
guest's buttocks and placing his lips on a female cast member's
breast, a female party guest sexually propositioning a male cast
member, and a male and female cast member attempting to goad one
another into disrobing, with the female cast member proposing a game
of "strip truth or dare to get naked." The strong emphasis on the fact
that some female party guests are pornographic film stars also panders
to the audience.
28. In reaching our determination, we disagree with WB Network's
contention that "these isolated scenes contain no graphic depictions
or profanity that might rise to the level of actionable indecency." In
support of its argument, WB Network cites the KSAZ MO&O and the Buffy
the Vampire Slayer MO&O in which we denied indecency complaints. Both
of these cases, however, are distinguishable from the Pool Party
Episode of the "The Surreal Life 2." Each of those cases involved two
fully clothed adults, and the individual scenes involved were less
graphic, explicit, and sustained than the complained-of material here.
29. In sum, because the material is explicit and graphic, is dwelled upon,
and presented in a manner to titillate and shock viewers, we conclude
that the broadcast of the material at issue here is patently offensive
under contemporary community standards for the broadcast medium and
thus apparently indecent. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the viewing audience and the broadcast is legally actionable.
30. Forfeiture Calculation. In the instant case, WBDC Broadcasting
consciously and deliberately broadcast this episode. Accordingly, we
find that WBDC Broadcasting's broadcast in apparent violation of 18
U.S.C. S 1464 and 47 C.F.R. S 73.3999 was willful within the meaning
of section 503(b)(1) of the Act, and subject to forfeiture.
31. Based on the egregious nature of the broadcast material at issue, and
the factors enumerated in section 503(b)(2)(D) of the Act, we further
find that a forfeiture amount of $27,500, the statutory maximum in
effect at the time of the broadcasts, is appropriate. The gravity of
the apparent violation is heightened by the degree to which the scene
dwells on and repeats sexual material in a manner that titillates and
shocks viewers. The scene lasts for over ten minutes, contains
approximately twenty pixilated images of nude adults, including a
fully nude body, and focuses almost entirely on men and women
disrobing, ogling, fondling, kissing, and sexually propositioning one
another during a pool party. Moreover, the Pool Party Episode of "The
Surreal Life 2" is a taped program with an obvious sexual theme that
could have been ascertained and preempted by the licensee or shown
after 10 p.m.
32. Although other stations also may have broadcast the Pool Party
Episode, we propose a forfeiture only against WBDC Broadcasting, Inc.
as the only licensee whose broadcast of the material was actually the
subject of a viewer complaint to the Commission. We recognize that
this approach differs from that taken in previous Commission decisions
involving the broadcast of apparently indecent programming. Our
commitment to an appropriately restrained enforcement policy, however,
justifies this more limited approach towards the imposition of
forfeiture penalties. Accordingly, we propose a forfeiture of $27,500
against WBDC Broadcasting, Inc.
1. "Con El Corazon En La Mano" (October 9, 2004)
33. The Programming. The Commission received a complaint alleging that NBC
Telemundo License Co. ("NBC Telemundo"), licensee of Station KWHY-TV,
Los Angeles, California, aired indecent material at approximately 8:15
p.m. on October 9, 2004, during a broadcast of the Spanish-language
movie, "Con El Corazon En La Mano." The complaint alleged that the
broadcast contains a scene depicting a man and woman engaged in sexual
intercourse while another individual watches them.
34. On April 8, 2005, the Bureau directed a letter of inquiry to NBC
Telemundo concerning the broadcast. NBC Telemundo responded by letters
dated May 19 and June 24, 2005. As confirmed by a videotape of the
program provided by NBC Telemundo, the scene in question depicts a man
raping a woman in a public restroom while another man stands nearby,
acting as a lookout. NBC Telemundo acknowledges that it aired the
movie over Station KWHY-TV, Los Angeles, California, beginning at 8:00
p.m. on October 9, 2004, and that the scene took place within the
first 15 minutes of the broadcast. NBC Telemundo maintains, however,
that "the complained-of material is not actionably indecent because it
does not include depictions of nude sexual or excretory organs,
offensive language or other material that the Commission previously
has deemed indecent."
35. Indecency Analysis. We find that the programming at issue is within
the scope of our indecency definition because it clearly depicts
sexual activity. NBC Telemundo does not deny that the material
portrays a woman being raped.
36. We also find that the complained-of material is, in the context
presented, patently offensive as measured by contemporary community
standards for the broadcast medium. Turning to the three principal
factors that inform our contextual analysis, the scene is explicit and
graphic. The material depicts a woman being savagely attacked and
raped in a public restroom. One man grabs the woman and forcibly
kisses her as she struggles to free herself. He strikes her to the
floor and, kneeling down, grabs one of her breasts as she screams. As
they struggle together on the floor, the camera focuses on their hips,
showing his hand pulling her underwear down her bare thigh as he
maneuvers on top of her with his groin between her legs. She forces
him off her by grabbing his testicles, but the other man blocks her
escape from the room, and the first man again pulls her to the floor,
re-mounts her and begins kissing her. She appears to cease resisting
and returns his kisses. The camera again pans to their hips, showing
his hand fumbling at his zipper. They quite clearly appear to have
sexual intercourse, with his groin thrusting into hers as she moans,
until he finally stops and rolls off of her. The scene then continues
for several minutes, depicting her reaction to the attack. The
material by its very design is extraordinarily intense and extremely
graphic. We reject NBC Telemundo's claim that the material is neither
explicit nor graphic simply because it contained no actual nudity. For
example, in the Married By America NAL, we found that scenes in which
nudity is electronically obscured may be considered graphic and
explicit if the sexual nature of the scene is unmistakable. In this
case, the sexual nature of the scene is unquestionable, and the
material is undeniably graphic, notwithstanding the lack of nudity.
37. Moving to the second factor in our contextual analysis, we conclude
that the broadcast dwells on sexual material. We have repeatedly held
that a persistent focus on sexual material is a relevant factor in
evaluating the potential offensiveness of broadcasts. The rape scene
in question lasts several minutes and, contrary to NBC Telemundo's
claim, is hardly ephemeral. As we stated in the Indecency Policy
Statement, "[r]epetition and persistent focus on sexual or excretory
material have been cited consistently as factors that exacerbate the
potential offensiveness of broadcasts."
38. With respect to the third factor, we find the material to be shocking.
In this regard, NBC Telemundo concedes that the rape scene was
designed to portray the "intensity of [a] serious and unspeakable
event . . . ." We agree. Not only does the scene portray an
"unspeakable" event of a profoundly disturbing sexual and violent
nature, it depicts an incident that was unquestionably shocking and
one to which children should not have been exposed. We reject NBC
Telemundo's argument that the instant case is indistinguishable from
Saving Private Ryan, wherein we determined that graphic language
throughout the movie was critical to portraying serious events
realistically. NBC Telemundo has not demonstrated here that the
depiction of a woman being violently raped in such a sustained and
graphic manner is essential. In any event, even if these aspects of
the scene were essential to the movie, that finding would not alter
our ultimate conclusion in this case because the other two factors
weigh heavily in favor of a finding of patent offensiveness as
measured by contemporary community standards for the broadcast medium.
We also do not find that NBC Telemundo's parental advisory prior to
its broadcast of "Con El Corazon En La Mano" insulates the licensee
from liability.
39. In sum, because the material is explicit and graphic, is dwelled upon,
and is shocking, we conclude that its broadcast was patently offensive
under contemporary community standards for the broadcast medium and
thus apparently indecent. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there was a reasonable risk that children may have been in
the viewing audience and the broadcast is legally actionable.
40. Forfeiture Calculation. In the instant case, we find that NBC
Telemundo consciously and deliberately broadcast the film in question.
Accordingly, we find that NBC Telemundo's apparent violation of 18
U.S.C. S 1464 and section 73.3999 of our rules was willful within the
meaning of section 503(b)(1) of the Act, and subject to forfeiture.
41. We therefore turn to the proposed forfeiture amount, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. We find that the statutory maximum,
$32,500, is appropriate for several reasons. As discussed in detail
above, the scene is extremely shocking, depicting a violent rape in a
graphic and sustained manner. Also, the broadcast was prerecorded. NBC
Telemundo knew that the film contained this material and should have
taken efforts to edit the scene. Indeed, NBC Telemundo did include a
warning of the upcoming scene. Although inclusion of a warning might
warrant a lower forfeiture under certain circumstances, we find that
it does not here in light of all of the circumstances surrounding the
apparent violation, including the shocking and gratuitous nature of
the scene and the fact that it was prerecorded. Therefore, we find
that NBC Telemundo is apparently liable for a forfeiture of $32,500
for its October 9, 2004 broadcast of "Con El Corazon En La Mano."
42. Although other stations may have broadcast the material at issue here
between 6 a.m. and 10 p.m., we propose a forfeiture against only the
licensee and station whose broadcast of the material was actually the
subject of a viewer complaint to the Commission. We recognize that
this approach differs from that taken in previous Commission decisions
involving the broadcast of apparently indecent programming. Our
commitment to an appropriately restrained enforcement policy, however,
justifies this more limited approach towards the imposition of
forfeiture penalties.
1. "Fernando Hidalgo Show" (October 19, 2004)
43. The Programming. The Commission received a complaint alleging that
Station WJAN-CA, Miami, Florida, aired indecent material during the
October 19, 2004 broadcast of the program the "Fernando Hidalgo Show,"
a Spanish-language talk show. The complaint refers to a segment that
involved partial female adult nudity. The segment was more than
fifteen minutes in duration.
44. On February 11, 2005, the Bureau sent a letter of inquiry to Sherjan
Broadcasting Company, Inc., the licensee of Station WJAN-CA,
concerning the material described above allegedly broadcast over the
station. Sherjan responded by letter dated March 14, 2005. As
confirmed by the videotape of the program provided by Sherjan, during
the segment in question, the host introduces a female guest by
stating, "before we present Juliana I want to tell the gentlemen to be
careful because she is dressed in a way that can cause a heart
attack." The female guest then appears in an open-front dress, with
her nipples covered, but her breasts otherwise fully exposed. As she
makes her entrance, she pirouettes in front of the audience, then
shakes her breasts towards the cameras. When she turns to face the
host, he briefly stares at her breasts, then mugs for the camera.
Sherjan acknowledges that the material in question was aired over
Station WJAN-CA at 7:00 p.m. on October 19, 2004, and that the female
guest appeared in an open-front dress. However, Sherjan maintains that
the complained-of material is not actionably indecent because it is "a
comedy routine" and does not shock or titillate.
45. Indecency Analysis. We find that the programming at issue is within
the scope of our indecency definition because it depicts sexual organs
- specifically an adult woman's breasts. Sherjan argues that the
complained-of material "did not include any description of sexual or
excretory functions in either the video or audio portion, let alone
graphic descriptions." However, the indecency definition clearly
encompasses depictions of sexual organs as well as sexual activities.
Moreover, the explicitness of the depiction is not relevant to the
threshold issue of whether the material depicts or describes a sexual
or excretory organ or activity, and is more appropriately considered
in our analysis of whether the material is patently offensive.
46. Turning to that issue, we find that, based on our contextual analysis,
the material in question is patently offensive as measured by
contemporary community standards for the broadcast medium. With
respect to the first factor of our contextual analysis, we find that
the material is explicit and graphic. The material clearly depicts a
woman's naked breasts, which are sexual organs. In this respect, this
case is similar to other cases in which we have held depictions of
nudity to be graphic and explicit. The fact that the guest's nipples
are covered with jewelry does not render the depiction of her breasts,
which were otherwise fully exposed, insufficiently graphic to weigh in
favor of a finding of patent offensiveness. Here, the audience had a
sustained view of the guest's breasts from several different angles,
and the dress only served to enhance the view.
47. With respect to the second factor of our analysis, we find that the
broadcast dwells on the sexual material. The guest's naked breasts are
visible throughout much of the segment in question, which lasts more
than fifteen minutes. Furthermore, the camera focuses on the female
guest's torso during much of that time. We have repeatedly held that
repetition and persistent focus on sexual or excretory material is a
relevant factor in evaluating the offensiveness of broadcasts.
48. With respect to the third factor, we find that the female guest's
partial nudity shocked, pandered to, and titillated the audience.
Indeed, the behavior of the guest and the host as she came on stage
highlighted the titillating nature of the material. Finally, we reject
the licensee's contention that the material broadcast is not indecent
because it is "a comedy routine." Even if this segment was comedic, it
is well settled that comedy formats do not insulate otherwise indecent
material.
49. In sum, we find that the broadcast material referenced in the
complaint contains an explicit and graphic depiction of sexual organs,
and that the nudity is dwelled upon and shocked, pandered to, and
titillated the audience. Therefore, we find that the material is
patently offensive as measured by contemporary community standards for
the broadcast medium and is apparently indecent. The complained-of
material was broadcast within the 6 a.m. to 10 p.m. time frame
relevant to an indecency determination under section 73.3999 of the
Commission's rules. Therefore, there is a reasonable risk that
children may have been in the viewing audience at the time that the
material at issue was broadcast, and the broadcast is legally
actionable.
50. Forfeiture Calculation. In the instant case, Sherjan consciously and
deliberately aired the "Fernando Hidalgo Show." By airing the
complained-of material, we find that Sherjan's apparent violation of
section 73.3999 and 18 U.S.C. S 1464 was willful within the meaning of
section 503(b)(1) of the Act, and subject to forfeiture.
51. We therefore turn to the proposed forfeiture amount, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. For the following reasons, we propose
a forfeiture of $32,500, the statutory maximum, for this broadcast.
The scene is sustained, lasting 15 minutes, and contains no warning of
the adult-oriented content. In addition, the gravity of the apparent
violation is heightened because of its egregious nature. Thus we find
Sherjan Broadcasting Company, Inc. is apparently liable for a
forfeiture of $32,500 for its October 19, 2004 broadcast of the
"Fernando Hidalgo Show."
1. "Video Musicales" (February 2 -March 8, 2002)
52. The Programming. The Commission received a series of written
complaints from individuals associated with the group D'Vanguardia
("Complainants") alleging that Aerco Broadcasting Corp. ("Aerco"),
licensee of Station WSJU-TV, San Juan, Puerto Rico, repeatedly
broadcast indecent material between the hours of 6:00 a.m. and 10:00
p.m. during the "Video Musicales" program in early 2002. After
reviewing the complaints and videotapes provided by the Complainants,
the Bureau directed a letter of inquiry to Aerco requesting further
information about the music videos that Station WSJU-TV allegedly
broadcast, specifically including "DJ Joe, Fatal Fantasy 2 - Feat,
Trebol, Clan," "DJ Joe, Fatal Fantasy 2-- Feat, Nejo, Speedy,"
"Operation Sandunga," and a promotional spot for a DVD entitled
"Dangerous -- Fatal Fantasy 2."
53. Aerco responded to the Bureau's letter on March 23, 2004, providing a
Spanish transcription and English translation of each of the music
videos and other material. Aerco states that it is not able to confirm
whether it broadcast some of the material at the times and dates
provided in the complaints and whether the music videos and other
material on the videotape provided by the Complainants accurately
reflect Station WSJU-TV's broadcasts. However, Aerco did not provide
any documentation that challenged or raised questions about any of the
complaints or videotapes made by the Complainants. Aerco also did not
provide a complete record of its program logs for the dates alleged in
the complaints.
54. Aerco asserts that it is not aware of any other complaints about the
material in question and thus contends that each of the complaints
represents only a single viewer who objects to the broadcast matter.
In addition, Aerco asserts that, in many instances, significant
portions of the material are inaudible and thus an ordinary viewer
would be not be able to understand the lyrics. Aerco explains that it
hired an independent firm to prepare the transcript to respond to the
Bureau's LOI, which isolated the music portion from the speaking
portion to identify the lyrics. Aerco asserts that the lyrics do not
contain offensive or indecent language and that there were no nude
scenes that would satisfy the Commission's standards for the
definition of indecency. Aerco concedes that some of the material is
suggestive, but that any "sexual or excretory import to the innuendo
or artistic license taken by the performers is subject to individual
interpretation and to be categorized as indecent, and not merely poor
taste, such innuendo must be unmistakable."
55. "DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan." This song repeatedly
mentions the singer's near-constant state of sexual arousal. There is
a segment of the video in which a boy appears to masturbate in a
bathroom stall. The lyrics accompanying the segment translate as
follows:
When I had been barely born, I instantly knew where I had come from. Since
then until I grew up, I have always yearned to be inside a similar hole.
In elementary school they called me Mr. Corner. In intermediate school
they called me "little masturbator" because this is where my vice of
rubbing myself incessantly began.
56. "DJ Joe, Fatal Fantasy 2 -- Feat, Nejo, Speedy." There are multiple
segments in which women clad in bikini tops and thongs bend away from
the camera - exposing their buttocks to the viewer -- and simulate
sexual intercourse. The music video includes a specific scene of a
woman bending away from the camera wearing a thong while one of the
male singers slaps her on the buttocks. The lyrics accompanying the
segment translate as follows:
I pushed her from the front. I took her and had her. I took her bra off. I
lowered her panties like old times. I will give it to you through the ass.
I will give it to you through the ass.
57. "Dangerous -- Fatal Fantasy 2." This promo for a DVD includes
multiple scenes with scantily-clad women fondling themselves and each
other in a sexual fashion. For example, there are scenes in which
females caress their breasts, buttocks and/or genital area. The promo
also includes several close-up camera shots of thong-clad buttocks, of
scantily-clad breasts and crotches, and of a woman removing her top
(with the shot changing just before her breasts are completely
exposed). Some of these scenes also show a woman applying baby oil to
another woman's buttocks and women caressing each other's breasts and
buttocks.
58. "Operation Sandunga." This material contains scenes with scantily-clad
women depicting lap dances and a scene simulating oral sex. In one
scene, the male singer is seated on a sofa with his legs spread apart.
In between his legs kneeling on the floor is a female with her back to
the camera whose head bobs up and down over the male's genital area,
simulating oral sex. In other scenes, the woman is also variously
shown kneeling and gyrating between his legs or straddling one leg and
gyrating with her chest in his face. According to Aerco, the lyrics
for the scene in which oral sex is simulated translate to: "You have
to lick, lick, lick, lick, lick ... You have to lick, mami, really
`be' ... `tra', [sic] to feel my thing and lick, mami, really `be' ...
`tra', [sic] to feel my thing."
59. Indecency Analysis. For the reasons discussed below, we find that each
of the complained-of videos and promo is apparently indecent.
60. "DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan." The material dwells on
the singer's near-constant state of arousal, depicts a male child
simulating masturbation, and the accompanying lyrics also refer to
masturbation. We find, therefore, that the material meets the first
prong of our indecency analysis.
61. Turning to the three principal factors that comprise our contextual
analysis, as mentioned above, we also find that the material, in the
context presented, is patently offensive under contemporary community
standards for the broadcast medium. With respect to the first factor,
the material explicitly depicts a male child simulating masturbation,
and includes lyrics also graphically and explicitly describing
masturbation, including characterization of the child as a
"masturbator," and a description of "rubbing himself" incessantly. We
find, with respect to the second factor, that the material repeatedly
discusses the singer's sexual arousal. We also find that the simulated
masturbation and lyrics that refer to masturbation by a male child are
not only pandering and titillating, they are shocking.
62. "DJ Joe, Fatal Fantasy 2 -- Feat, Nejo, Speedy." We find that this
material depicts simulated sexual activity between a woman in a thong
and a male singer. The lyrics accompanying this depiction refer to
sexual activity, including "I took her and had her," "I lowered her
panties like old times," and "I will give it to you through the ass."
This material also depicts and describes the buttocks, which are
sexual and excretory organs.
63. We also find that the material, in the context presented, is patently
offensive under contemporary community standards for the broadcast
medium. The segment depicts simulated sexual intercourse and contains
lyrics that graphically and explicitly describe sexual activities ( "I
will give it to you through the ass"). In this segment, women's
buttocks are also clearly visible on screen. The segment dwells on and
repeats the sexual material, the second factor in our analysis. We
have repeatedly held that repetition and persistent focus on sexual
material is a relevant factor in evaluating the potential
offensiveness of broadcasts. The camera angles throughout repeatedly
dwell on shots that provide views of the female dancers' buttocks. The
segment is focused entirely on the repetition of simulated sexual
activity with accompanying lyrics that describe such activity. With
respect to the third factor, we find that the simulated sexual
activity, accompanied by explicit lyrics that reference sexual
activity ("I will give it to you through the ass"), and the persistent
visual focus on the female dancer's buttocks are presented in a manner
that is obviously pandering and titillating.
64. "Dangerous -- Fatal Fantasy 2." We find that this material meets the
first prong of the Commission's indecency test. The material includes
close-up shots of thong-clad buttocks, breasts and crotches, as well
as females fondling their breasts, buttocks and genital areas while
they dance, gyrate, and fondle one another in a sexually suggestive
manner. These scenes clearly depict sexual organs and activities.
65. We also find that this material, in the context presented, is patently
offensive under contemporary community standards for the broadcast
medium. The material contains close-up shots of thong-clad buttocks, a
female fondling her genital area, and women caressing their own
breasts and buttocks as well as those of others. Thus, we conclude
that the material is graphic and explicit. Second, while not
dispositive, it is relevant that these types of images appear numerous
times throughout the promo and, therefore, that sexual images are
sustained and repetitious. Finally, the close-up shots of thong-clad
buttocks and women fondling their own breasts, buttocks and genital
areas as well as the breasts and buttocks of other women in a sexually
suggestive manner are presented in a pandering and titillating manner.
Indeed, this material appears to have little other purpose. Therefore,
because the complained-of material is explicit and graphic, repeated,
and is pandering and titillating, we conclude that the promo is
patently offensive and thus indecent.
66. "Operation Sandunga." This material meets the first prong of the
indecency test. As noted above, this material includes a scene and
lyrics describing and depicting oral sex, a sexual activity.
Accordingly, we find that the material describes and depicts a sexual
activity. We also find that the material, in the context presented
here, is patently offensive under contemporary community standards for
the broadcast medium. With respect to the first principal factor that
informs our contextual analysis, the scene and lyrics depict and
describe a female performing oral sex in a manner that is graphic and
explicit. With respect to the second factor, while not dispositive, it
is relevant that sexual references are sustained and repeated. The
scene depicting oral sex is coupled with numerous other scenes
depicting the same woman gyrating suggestively as she kneels between
the male singer's legs or straddles one of his legs with her chest
thrust in his face, apparently simulating a "lap dance." Finally, the
graphic depictions of oral sex, joined with the repeated and explicit
lyrics in which men direct women to lick their genitals, panders to
and titillates the audience. Therefore, because the complained-of
material is explicit and graphic, repeated, and shocks, panders, and
titillates, we conclude that the video is patently offensive and thus
indecent.
67. Aerco states that the music videos and other broadcast material at
issue here may be suggestive, but are not indecent or obscene under
prevailing standards. Aerco cites the Indecency Policy Statement to
support its assertion. We disagree with Aerco's analysis. These
broadcasts combine sexually explicit language and innuendo with visual
depictions that graphically depict the meaning of the lyrics. We also
do not agree with Aerco's argument that the lyrics are barely
intelligible.
68. According to the Complaints and videotapes, Aerco broadcast each of
the music videos and the promo on multiple occasions. Aerco, in its
Response, states that it is unable to determine whether it broadcast
"DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan" or "DJ Joe -- Fatal
Fantasy 2-Feat, Nejo, Speedy" because its program logs list three
music videos with similar titles. Aerco confirms that the promo for
the DVD titled "Dangerous - Fatal Fantasy 2" aired on the four dates
alleged in the complaints, but states that it is unable to determine
the broadcast times. Aerco also asserts that it is unable to determine
whether "Operation Sandunga" was aired on the date alleged in the
complaint because it has no records of this music video. Aerco states
that it broadcast programs produced by independent producers after
10:00 p.m. and that it "could" have aired the independently produced
"Operation Sandunga" music video during this time period.
69. Based on the complaints and the accompanying videotapes, and in the
absence of any evidence to the contrary, we find that Aerco broadcast
each of the music videos and the promo in question multiple times - a
total of at least 14 broadcasts - between the hours of 6 a.m. and 10
p.m., the time frame relevant to an indecency determination. Because
there is a reasonable risk that children may have been in the audience
when the material in each was broadcast, the material broadcast is
legally actionable. By broadcasting this material during these times
over Station WSJU-TV, Aerco apparently violated the prohibitions in
the Act and the Commission's rules against broadcast indecency.
70. Forfeiture Calculation. Aerco consciously and deliberately broadcast
the videos and the DVD promo. Accordingly, we find that the broadcasts
in apparent violation of 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999 were
willful within the meaning of section 503(b)(1) of the Act.
Additionally, Aerco aired this material a total of 14 times.
Accordingly, we find that Aerco's apparent violation of 18 U.S.C. S
1464 and 47 C.F.R. S 73.3999 was also repeated.
71. We therefore turn to the proposed forfeiture amount, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. Based on consideration of the
statutory factors, we find it is appropriate to use the statutory
maximum amount of $27,500 to calculate the proposed forfeiture in this
case. The gravity of the apparent violations is heightened in this
case because, as discussed above, the music videos and the DVD promo
at issue are extremely graphic and explicit, including close-up scenes
of sexual fondling and simulated oral sex, which are repeated
throughout the material. One broadcast segment explicitly depicts a
child masturbating, and another repeatedly displays women's buttocks
in a pandering and titillating manner. All of the material depict and
describe sexual organs or activities in a highly shocking, vulgar, and
gratuitous manner. In addition, this material could have been reviewed
by Aerco prior to broadcast. Multiplying the statutory maximum amount
of $27,500 by the 14 broadcasts at issue here results in a total
forfeiture amount of $385,000. Under the specific circumstances of
this case, however, we believe that such a forfeiture would be
excessive to achieve the appropriate level of punishment and
deterrence and that $220,000 is a more appropriate amount. We base
this conclusion on several factors, including the fact that Aerco is
the licensee of only San Juan, Puerto Rico, Stations WSJU-TV and
WQBS(AM) and that it has no prior indecency violations. Therefore, for
the reasons stated above, we propose a forfeiture of $220,000 against
Aerco Broadcasting Corp. for its willful and repeated violations of 18
U.S.C. S 1464 and 47 C.F.R. S 73.3999.
1. "The Blues: Godfathers and Sons" (March 11, 2004)
72. The Programming. The Commission received a complaint alleging that San
Mateo County Community College District ("San Mateo"), licensee of
noncommercial educational Station KCSM-TV, San Mateo, California,
aired indecent material over the station during its broadcast of the
program "The Blues: Godfathers and Sons" on March 11, 2004 between the
hours of 8:42 and 9:32 p.m. Pacific Standard Time. The complaint
alleged that the broadcast, an episode of a prerecorded documentary
series provided by the Public Broadcasting Service ("PBS"), contains
numerous "obscenities," including the "F-Word," the "S-Word" and
various derivatives of those words, in violation of the Commission's
rules restricting the broadcast of indecent material. The complainant
therefore asked that the Commission investigate and take appropriate
enforcement action.
73. Thereafter, the Bureau sent a letter of inquiry to San Mateo,
attaching a copy of the Complaint. In its response, San Mateo
acknowledges that it aired "The Blues: Godfathers and Sons," a
documentary containing interviews of blues performers and a record
producer, over Station KCSM-TV as alleged, between 8 and 10 p.m. on
March 11, 2004, but not on any other dates between 6:00 a.m. and 10:00
p.m. With its response, San Mateo provided a DVD and a written
transcript of the program. San Mateo does not dispute that it aired
the material described in the complaint. It states, "[t]he intent of
the program is to provide a window into [the world of the individuals
being interviewed] with their own words, all of which becomes an
educational experience for the viewer." Thus, San Mateo maintains that
the language contained in the program was not "used in a prurient way,
but rather as an infrequent conversational expression of the artist
[being interviewed], and was not edited to remove their dialogue,
which accurately reflected their viewpoints." San Mateo represents
that, subsequent to its station's airing of the program, PBS alerted
its member stations that this and similar PBS-supplied programs
contained material that might be deemed indecent in light of
then-recent Commission rulings, and advised licensees that PBS had
changed its procedures involving the editing of potentially indecent
or offensive language in programming that it provides them and will
now alert licensees to potential problems.
74. Indecency Analysis. The Commission determined in its Golden Globe
Awards Order that the "F-Word" meets the first prong of the indecency
test. We stated, "given the core meaning of the "F-Word," any use of
that word or a variation, in any context, inherently has a sexual
connotation, and therefore falls within the first prong of our
indecency definition." Similarly, we now find that the "S-Word," at
issue here, has an inherently excretory connotation. In light of the
core meanings of the "F-Word" and "S-Word," any use of those terms
inherently has sexual or excretory connotations and falls within the
first prong of our indecency definition.
75. We also find that the broadcast material is, in context, patently
offensive as measured by contemporary community standards for the
broadcast medium. First, as we stated in Golden Globe Awards Order,
the "F-Word" is one of the most vulgar, graphic, and explicit
descriptions of sexual activity in the English language. Its use
invariably invokes a coarse sexual image." Similarly, we find the
"S-Word" to be one of the most vulgar, graphic and explicit words
relating to excretory activity in the English language. Use of the
"S-Word" invariably invokes a coarse excretory image. Consequently, we
conclude that the broadcast by San Mateo of a program containing
numerous uses of the "F-Word" and the "S-Word," under the
circumstances presented here, is vulgar, graphic, and explicit.
76. Second, the program repeats this language numerous times during the
broadcast. We note that, while prior FCC staff actions had indicated
as of the date this program aired that isolated broadcasts of certain
expletives were not indecent or would not be acted upon, the program
at issue here contains numerous repeated utterances of the "F-Word"
and "S-Word," and their variants. Our precedent is clear that
broadcasts containing numerous expletives may be actionably indecent.
77. Third, the gratuitous and repeated use of this language in a program
that San Mateo aired at a time when children were expected to be in
the audience is shocking. While San Mateo contends that the expletives
in question were not removed from the program so that the viewpoints
of those being interviewed would be accurately reflected, as discussed
below we disagree that the use of such language was necessary to
express any particular viewpoint in this case. We also note that many
of the expletives in the broadcast are not used by blues performers.
For example, based on our review of the DVD and transcript, Marshall
Chess, a former label owner and record producer, states in discussing
the relationship between Chess Records and its artists, "my dad had so
many people at his funeral, my uncle said, `You see all those
motherfuckers? They're coming to make sure he's dead, so they don't
have to pay back those motherfuckin' notes.'" In another scene,
discussing his relationship with his father at Chess Records, Marshall
Chess states, "[h]e said, `What's your job? You stupid motherfucker!
Your job is watching me!'" During a scene showing hip-hop artists Kyle
Jason, Juice, and Chuck D. shopping in a record store with Chess, Kyle
Jason states, "I'll buy some shit," and Juice states, "This looks
crazy! See that? This is the kind of shit I buy! I mean, my man is
wearing pink gear--that shit, that shit is crazy right there! I'm
buyin' it!"
78. In sum, because the expletives in the program are vulgar, explicit,
graphic, dwelled upon and shocking to the audience, we conclude that
the broadcast of the material at issue here is patently offensive
under contemporary community standards for the broadcast medium and
thus apparently indecent. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the viewing audience and the broadcast is legally actionable.
79. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" was profane within the meaning of 18
U.S.C. S 1464 because, in context, it constituted vulgar and coarse
language "so grossly offensive to members of the public who actually
hear it as to amount to a nuisance." We indicated in that decision
that the Commission would analyze other potentially profane words on a
case-by-case basis.
80. The "F-Word" is a vulgar sexual term so grossly offensive to members
of the public that it amounts to a nuisance and is presumptively
profane. It is one of the most offensive words in the English
language, the broadcast of which is likely to shock the viewer and
disturb the peace and quiet of the home. Consistent with our decision
in the Golden Globe Awards Order, we find here that the use of the
"F-Word" in the program at issue violated 18 U.S.C. S 1464's
prohibition of the broadcast of "profane" language.
81. In addition, we find that the "S-Word" is a vulgar excretory term so
grossly offensive to members of the public that it amounts to a
nuisance and is presumptively profane. Like the "F-Word," it is one of
the most offensive words in the English language, the broadcast of
which is likely to shock the viewer and disturb the peace and quiet of
the home.
82. As noted previously, in rare contexts, language that is presumptively
profane will not be found to be profane where it is demonstrably
essential to the nature of an artistic or educational work or
essential to informing viewers on a matter of public importance.
However, we will find this to be the case only in unusual
circumstances, and such circumstances are not present here. Although
in this case the profane language may have had some communicative
purpose, we do not believe that San Mateo has demonstrated that it was
essential to the nature of an artistic or educational work or
essential to informing viewers on a matter of public importance, or
that the substitution of other language would have materially altered
the nature of the work. In this respect, this case is unlike Saving
Private Ryan, where we concluded that deleting offensive words "would
have altered the nature of the artistic work and diminished the power,
realism and immediacy of the film experience for viewers." While we
recognize here that the documentary had an educational purpose, we
believe that purpose could have been fulfilled and all viewpoints
expressed without the repeated broadcast of expletives.
83. It is undisputed that the complained-of material, including the
"F-Word" and the "S-Word," was broadcast within the 6 a.m. to 10 p.m.
time frame relevant to a profanity determination under section 73.3999
of the Commission's rules. Because there was a reasonable risk that
children may have been in the audience at the time the material at
issue was broadcast on March 11, 2004, the material broadcast is
legally actionable.
84. Forfeiture Calculation. San Mateo consciously and deliberately
broadcast this episode. Accordingly, we find that the broadcast in
apparent violation of 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999 was
willful within the meaning of section 503(b)(1) of the Act, and
subject to forfeiture. Taking into account the statutory factors and
the circumstances of this case, we conclude that the appropriate
proposed forfeiture in this case is $15,000.
85. The Commission's prohibition on the repeated use of expletives,
including the "F-Word" and "S-Word," was well settled prior to March
2004. The complained-of material contains numerous unedited
expletives. The program in question was supplied to the licensee by
PBS replete with two words that are among the most vulgar, graphic,
and explicit descriptions of sexual and excretory activity in the
English language, but whose propriety San Mateo nevertheless failed to
question. By broadcasting the program complete with these expletives,
San Mateo effectively abdicated this aspect of its programming control
to an outside entity, PBS. On the other hand, however, we do recognize
that the expletives here were contained in a documentary, and while we
conclude that the arguments made by the licensee are mistaken, we do
find that the licensee may have been under the good faith belief that
the use of these expletives served a legitimate informational purpose.
Additionally, we recognize the fact that the licensee runs a small,
community station that airs college level educational courses for most
of the day. Under these circumstances, we believe that a proposed
forfeiture in the amount of $15,000 is warranted here.
86. Although other stations may have also broadcast the subject episode of
"The Blues: Godfathers and Sons," we propose a forfeiture only against
San Mateo as the only licensee with a station whose broadcast of the
material between 6 a.m. and 10 p.m. was the subject of a viewer
complaint filed with the Commission. We recognize that this approach
differs from that taken in previous Commission decisions involving the
broadcast of apparently indecent programming. We find, in this case,
however, that, in the absence of complaints concerning the program
filed by viewers of other stations, it is appropriate that we sanction
only the licensee of the station whose viewers complained about that
program. Our commitment to an appropriately restrained enforcement
policy, however, justifies this more limited approach towards the
imposition of forfeiture penalties. Accordingly, we propose a
forfeiture of $15,000 against San Mateo.
1. "The Pursuit of D.B. Cooper" (March 15, 2003)
87. The Programming. A viewer filed a complaint with the Bureau alleging
that Station KTVI(TV), St. Louis, Missouri, licensed to KTVI License,
Inc ("KTVI"), repeatedly aired the "S-Word" on the afternoon of
Saturday, March 15, 2003, during the broadcast of a movie featuring a
fictional account of the fate of D.B. Cooper, the alias used by a
person who disappeared after skyjacking an airplane and extorting
money from an airline in 1971. The movie contains numerous scenes in
which the "S-Word" is used: a scene in which D.B. Cooper refers to an
aborted disguise ("shit"); a flashback scene between Cooper and his
then-commanding officer ("horseshit"); a scene between the insurance
investigator pursuing Cooper and the investigator's boss ("shit'); a
cafe scene ("bullshit"); a scene between Cooper's father and ex-wife
in which she describes Cooper as having a "shit-eating grin;" a scene
after a fire ("bullshit" used twice); a scene during which Cooper
escapes from his pursuers by boarding a river raft ("oh, shit!"); and
a scene in which a former crony of Cooper buys a used car
("bullshit"). In a subsequent scene involving repairs to a car, an
auto mechanic claims he will have the car running "slicker'n owl shit"
and "smoother'n owl shit." When the car breaks down, Cooper refers
back to the mechanic's words ("smoother'n owl shit" twice). At the end
of the movie, in scenes in which Cooper is pursued by his former crony
and the investigator, the "S-Word" is reiterated on several occasions:
in a scene featuring the two pursuers ("shit"); a scene featuring a
telephone call between the investigator and his boss ("shit"); a scene
taking place aboard an airplane ("shit" and "oh, shit!"); a scene in
which Cooper uses the airplane to chase a car driven by his former
crony ("holy shit" and "shit"); and a scene after the airplane crashes
("bullshit").
88. The Bureau sent the licensee a letter of inquiry and attached the
complaint. KTVI contends that the aired material is not actionably
indecent. The licensee argues that the material at issue is not
graphic or explicit, that it is not dwelled upon and that it is not
titillating or presented for shock value. KTVI does not claim to have
provided any parental warnings prior to or during its broadcast of the
film, which occurred from 2:00 to 4:00 p.m.
89. Indecency Analysis. KTVI acknowledges - and our review confirms -
that the aired movie, "The Pursuit of D.B. Cooper," includes repeated
uses of the words "shit," "bullshit," and "owl shit." Each of those
terms, of course, has a clear excretory connotation and describes an
excretory activity. Thus, the complained-of material falls within the
first prong of our indecency definition.
90. Turning to the second step of our indecency analysis - whether the
broadcast material is patently offensive - we conclude, looking at the
three principal factors in our contextual evaluation, that the
complained-of material is patently offensive under contemporary
community standards for the broadcast medium.
91. First, the material is quite graphic and explicit. The "S-Word" is a
vulgar, graphic and explicit description of excrement. Its use
invariably invokes a coarse excretory image. Consequently, we conclude
that the broadcast of a program containing numerous uses of the
"S-Word" and its variations, under the circumstances presented here,
is vulgar, graphic and explicit.
92. Second, the "S-Word," in various iterations, is used on a number of
occasions. We note that, while prior Commission and staff actions had
indicated as of the date this program aired that isolated broadcasts
of certain expletives were not indecent or would not be acted upon,
the program at issue here contains repeated utterances of the
"S-Word," and its variants. As noted above, the Commission has
previously held that repeated use of expletives may be actionably
indecent.
93. Third, and most important to our analysis, multiple gratuitous
iterations of the "S-Word" broadcast on a weekend afternoon at a time
when children are likely to be in the audience, shock, pander to, and
titillate the audience. By failing to edit the movie, the licensee
needlessly offended unsuspecting viewers in their homes on a weekend
afternoon.
94. In sum, because the material is explicit and graphic, is dwelled upon,
and shocks, panders, and titillates, we conclude that its broadcast
here is patently offensive under contemporary community standards for
the broadcast medium and thus apparently indecent. The complained-of
material was broadcast within the 6 a.m. to 10 p.m. time frame
relevant to an indecency determination under section 73.3999 of the
Commission's rules. Therefore, there is a reasonable risk that
children may have been in the viewing audience and the broadcast is
legally actionable.
95. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S 1464 because, in context, it constituted vulgar
and coarse language "so grossly offensive to members of the public who
actually hear it as to amount to a nuisance."
96. In this case, as in the related cases in this decision, we similarly
find that the "S-Word" is a vulgar excretory term so grossly offensive
to members of the public that it amounts to a nuisance and is
presumptively profane. For the reasons stated above, use of the
"S-Word" invariably invokes a coarse excretory image. Like the
"F-Word," it is one of the most offensive words in the English
language, the broadcast of which is likely to shock the viewer and
disturb the peace and quiet of the home.
97. In rare contexts, language that is presumptively profane will not be
found to be profane where it is demonstrably essential to the nature
of an artistic or educational work or essential to informing viewers
on a matter of public importance. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are clearly not present here. Although in this case, the
profane language in this film may have had some communicative purpose,
we do not believe that it was essential to the nature of an artistic
or educational work or that editing the language would have materially
altered the nature of the program. Based upon our review of the record
in this case, we conclude that KTVI aired profane material between 6
a.m. and 10 p.m. in violation of 18 U.S.C. S 1464.
98. Forfeiture Calculation. KTVI consciously and deliberately broadcast
this film. Accordingly, we find that the broadcast in apparent
violation of 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999 was willful
within the meaning of section 503(b)(1) of the Act, and subject to
forfeiture. We therefore turn to the proposed forfeiture amount, based
on the factors enumerated in section 503(b)(2)(D) of the Act and the
facts and circumstances of this case.
99. We find that the statutory maximum of $27,500 is an appropriate
proposed amount for the March 15, 2003 broadcast. The material was
prerecorded, and KTVI could have edited the content prior to
broadcast. In addition, as noted above, the gravity of the apparent
violation is heightened here because of its shocking and gratuitous
nature, involving as it does multiple gratuitous utterances of vulgar,
graphic, and offensive expletives during a weekend afternoon
broadcast. The Commission's prohibition of the broadcast of repeated
uses of expletives such as the "S-Word" was well settled prior to its
broadcast. The program in question was replete with an expletive that
is among the most vulgar, graphic, and explicit descriptions of
excretory activity in the English language, but which KTVI
nevertheless failed to edit out, suggesting indifference to our
indecency regulations. Therefore, we find that KTVI License, Inc. is
apparently liable for a proposed forfeiture of $27,500 for its March
15, 2003 broadcast of "The Pursuit of D.B. Cooper."
A. Indecent And/Or Profane Broadcasts But No Forfeiture Proposed
100. In each of the following cases, we find that the broadcasts at issue
are indecent and profane. Because of the specific circumstances
associated with the broadcasts, however, we do not propose
forfeitures. With one exception, these broadcasts preceded the
Commission's decision in the Golden Globe Awards Order reversing
precedent that had suggested that the isolated use of an offensive
word like the "F-Word" is not indecent. In light of our decision not
to impose a forfeiture based upon the facts of each case, we will not
require the licensee of any of the stations that broadcast the
material to report our finding here to us as part of their renewal
applications and we will not consider the broadcast to impact
adversely upon such licensees as part of the renewal process.
1. "The 2002 Billboard Music Awards" (December 9, 2002)
101. The Programming. The Commission received a complaint concerning the
December 9, 2002 broadcast of the "Billboard Music Awards" program
over Fox Television Network ("Fox") stations, and specifically
Station WTTG(TV), Washington, DC, between 8 and 10 p.m., Eastern
Standard Time. The complaint alleges that, during the broadcast, the
performer Cher states, "People have been telling me I'm on the way
out every year, right? So fuck `em." The complaint alleges that the
expletive was indecent and requests that the Commission levy
sanctions against each station licensee that aired the material. The
Enforcement Bureau obtained a videotape of the offending broadcast
that confirms the complaint's allegation.
102. Indecency Analysis. We held in the Golden Globe Awards Order that,
given the core meaning of the "F-Word," any use of that word
inherently has a sexual connotation and falls within the first prong
of our indecency definition. Cher's retort to her critics used
language that we have found inherently describes sexual activity. The
material, therefore, warrants further scrutiny to determine whether
or not it was patently offensive as measured by contemporary
standards for the broadcast medium. We conclude, looking at the three
principal factors in our contextual analysis, that the material is
patently offensive.
103. First, the complained-of material is quite graphic and explicit. As
we indicated in the Golden Globe Awards Order, the "F-Word" is one of
the most vulgar, graphic, and explicit words relating to sexual
activity in the English language. Its use invariably invokes a coarse
sexual image." We conclude that the broadcast of the "F-Word," under
the circumstances presented here, is vulgar, graphic and explicit.
104. Second, the fact that the material is not repeated or not dwelled
upon at length, while relevant, is not dispositive. As the Commission
indicated in the Golden Globe Awards Order: "[T]he mere fact that
specific words or phrases are not sustained or repeated does not
mandate a finding that material that is otherwise patently offensive
to the broadcast medium is not indecent."
105. Third, and most important to our analysis in this specific context,
Cher's use of the "F-Word" here, at a live broadcast of an awards
ceremony when children were expected to be in the audience, was
shocking and gratuitous. Cher chose to express her displeasure with
her critics in a highly vulgar and coarse manner, and in doing so,
needlessly offended unsuspecting viewers in the peace and quiet of
their homes.
106. In sum, because the material is explicit and shocking and gratuitous,
we conclude that the broadcast of the material at issue here is
patently offensive under contemporary community standards for the
broadcast medium and thus apparently indecent. Technological advances
have made it possible to block the broadcast of offensive words
without disproportionately disrupting a speaker's message. Fox could
have avoided the indecency violation here by delaying the broadcast
for a period of time sufficient to ensure that all offending words
were blocked. It did not do so. As a result, the Fox affiliate
WTTG(TV) broadcast highly offensive material within the 6 a.m. to 10
p.m. time frame relevant to an indecency determination under section
73.3999 of the Commission's rules. By broadcasting this material, the
station apparently violated the prohibitions in 18 U.S.C. S 1464 and
the Commission's rules against broadcast indecency.^.
107. Profanity Analysis. The "F-Word" is a vulgar sexual term so grossly
offensive to members of the public that it amounts to a nuisance and
is presumptively profane. The "F-Word" is one of the most offensive
words in the English language, the broadcast of which is likely to
shock the viewer and disturb the peace and quiet of the home.
Consistent with our decision in the Golden Globe Awards Order, we
find here that the use of the "F-Word" in the program at issue here
apparently violated 18 U.S.C. S 1464's prohibition of the broadcast
of "profane" language.
108. In rare contexts, language that is presumptively profane will not be
found to be profane where its use is demonstrably essential to the
nature of an artistic or educational work or essential to informing
viewers on a matter of public importance. We caution, however, that
we will find this to be the case only in unusual circumstances, and
such circumstances are not present here. Although in this case, the
profane language used by Cher may have had some communicative
purpose, we do not believe that Fox has demonstrated that the use of
such language was essential to informing viewers on a matter of
public importance or that editing the language in question would have
had a material impact on the network's function as a source of news
and information. We note again that Fox or Station WTTG(TV) could
have used a delaying technique to avoid the offending broadcast.
109. It is undisputed that the complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination under section 73.3999 of the Commission's rules.
Because there was a reasonable risk that children may have been in
the audience at the time the material at issue was broadcast, the
material broadcast is legally actionable.
110. No Sanction Proposed. In the instant case, we find that the Fox
Network affiliate Station WTTG(TV) consciously and deliberately
broadcast the program in question. Accordingly, we find that the
station's apparent violation of 18 U.S.C. S 1464 and section 73.3999
of our rules was willful. Thus, we conclude that the Fox affiliate
Station WTTG(TV) aired indecent and profane material between 6 a.m.
and 10 p.m. in apparent violation of 18 U.S.C. S 1464 and our rules.
111. The gratuitous use of indecent and profane language on a national
network broadcast ordinarily would warrant a forfeiture under the
standards announced in the Golden Globe Awards Order. Nonetheless, we
recognize that our precedent at the time of the broadcast indicated
that the Commission would not take enforcement action against
isolated use of expletives. "But for the fact that existing precedent
would have permitted this broadcast, it would be appropriate to
initiate a forfeiture proceeding against [Fox] and other licensees
that broadcast the program prior to 10 p.m." Accordingly, we find
that no forfeiture is warranted in this case.
1. "The 2003 Billboard Music Awards" (December 10, 2003)
112. The Programming. The Commission received a number of complaints
alleging that the Fox Television Network ("Fox" or "Fox Network")
aired indecent material during the "Billboard Music Awards" program
on December 10, 2003 between 8 and 10 p.m., Eastern Standard Time.
The complainants allege that, during the broadcast, Nicole Richie, an
award presenter, uttered vulgar expletives in violation of the
Commission's rules restricting the broadcast of indecent material.
The complainants request that the Commission levy sanctions against
each station licensee that aired the remarks.
113. The Bureau sent Fox a letter of inquiry and attached a transcript of
the material in question. Fox responded on January 30, 2004. Fox
contends that the aired material is not actionably indecent and does
not contain any description or depiction of sexual or excretory
organs or activities in a patently offensive manner.
114. Indecency Analysis. During her appearance on the "Billboard Music
Awards," Ms. Richie uttered the "F-Word" and the "S-Word." Fox does
not dispute that the "S-Word" refers to excrement. Fox contends,
however, that Ms. Richie used the "F-Word" as a mere vulgar expletive
to express emphasis, not to depict or describe sexual activities. We
disagree. Given the core meaning of the "F-Word," any use of that
word inherently has a sexual connotation and falls within the first
prong of our indecency definition. We conclude that the material at
issue clearly describes sexual and excretory activity. The material,
therefore, warrants further scrutiny to determine whether or not it
is patently offensive as measured by contemporary community standards
for the broadcast medium. We conclude, looking at the three principal
factors in our contextual analysis, that it is.
115. First, the complained-of material is quite graphic and explicit. The
"F-Word" is one of the most vulgar, graphic, and explicit depictions
of sexual activity in the English language. Its use invariably
invokes a coarse sexual image. Similarly, the "S-Word" is a vulgar,
graphic, and explicit depiction of excretory activity. Its use
invariably invokes a coarse excretory image. Consequently, we
conclude that the broadcast of the "F-Word" and the "S-Word," under
the circumstances presented here, is vulgar, graphic and explicit.
116. Second, the fact that use of the words was not sustained or repeated,
while relevant, is not dispositive. As the Commission indicated in
the Golden Globe Awards Order: "[T]he mere fact that specific words
or phrases are not sustained or repeated does not mandate a finding
that material that is otherwise patently offensive to the broadcast
medium is not indecent."
117. Third, and most important to our analysis in this context, Ms.
Richie's use of the "F-Word" and the "S-Word" here, during a live
broadcast of a music awards ceremony when children were expected to
be in the audience, was shocking and gratuitous. Indeed, Fox admits
that the tone of the material was vulgar.
118. Like the broadcaster discussed the Golden Globe Awards Order, Fox was
"on notice that an award presenter or recipient might use offensive
language during the live broadcast, and it could have taken
appropriate steps to ensure that it did not broadcast such language."
As the previous case involving Cher demonstrates, Fox had clear
notice that celebrities at this program might utter offensive
expletives, including the "F-Word" during the broadcast. Moreover,
the record of this broadcast shows that Fox, as the producer of the
program and the network that carried it to affiliates throughout the
country, deliberately sought to push the limits of decency. According
to Fox, the original script called for Ms. Richie to make excretory
references to "pig crap" and "cow manure," and to substitute the
euphemism "freaking" for the "F-Word." Under the circumstances, there
was a palpable risk that Ms. Richie would use the "F-Word" and the
"S-Word" instead of the euphemisms in the script.
119. Technological advances have made it possible to block the broadcast
of offensive words without disproportionately disrupting a speaker's
message. Indeed, Fox utilized a five-second delay during the
broadcast in question and successfully blocked Ms. Richie's first use
of the "S-Word." Fox could have avoided the indecency violation here
by delaying the broadcast for a period of time sufficient to ensure
that all offending words were blocked. It did not do so. As a result,
it broadcast highly offensive material within the 6 a.m. to 10 p.m.
time frame relevant to an indecency determination under section
73.3999 of the Commission's rules.
120. In sum, because the material is explicit and shocking and gratuitous,
we conclude that the broadcast of the material at issue here is
patently offensive under contemporary community standards for the
broadcast medium and thus apparently indecent. By broadcasting this
material, the Fox affiliated stations whose broadcasts were the
subject of viewer complaints to the Commission apparently violated
the prohibitions in 18 U.S.C. S 1464 and the Commission's rules
against broadcast indecency.
121. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S 1464 because, in context, it constituted
vulgar and coarse language "so grossly offensive to members of the
public who actually hear it as to amount to a nuisance." In this
case, we similarly find that the "F-Word" is a vulgar sexual term and
the "S-Word" is a vulgar excretory term, each of which is so grossly
offensive to members of the public as to amount to a nuisance and
that each word accordingly is presumptively profane. For the reasons
stated above, use of the "F-Word" invariably invokes a coarse sexual
image and use of the "S-Word" invariably invokes a coarse excretory
image. Each of these words is among the most offensive words in the
English language, the broadcast of which is likely to shock the
viewer and disturb the peace and quiet of the home.
122. In rare contexts, language that is presumptively profane will not be
found to be profane where it is demonstrably essential to the nature
of an artistic or educational work or essential to informing viewers
on a matter of public importance. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are not present here. Although in this case, profane
language may have had some communicative purpose, we do not believe
that Fox has demonstrated that it was essential to informing viewers
on a matter of public importance or that editing the language in
question would have had a material impact on the network's function
as a source of news and information.
123. It is undisputed that the complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination under section 73.3999 of the Commission's rules.
Because there was a reasonable risk that children may have been in
the audience at the time the material at issue was broadcast, the
material broadcast is legally actionable.
124. No Sanction Proposed. Based upon our review of the record in this
case, we conclude that the Fox Network affiliated stations in the
Eastern and Central Time Zones whose broadcasts were the subject of
viewer complaints to the Commission aired material in violation of 18
U.S.C. S 1464 and our rules. They each broadcast indecent and profane
words in an awards show that aired between 6 a.m. and 10 p.m. and was
watched by people of all ages. The licensees of these stations each
consciously and deliberately broadcast the program in question.
Accordingly, the apparent violation of 18 U.S.C. S 1464 and section
73.3999 of our rules was willful. The willful broadcast of indecent
and profane material on a national network broadcast ordinarily would
warrant a forfeiture under the standards announced in the Golden
Globe Awards Order. Nonetheless, we recognize that our precedent at
the time of the broadcast indicated that the Commission would not
take indecency enforcement action against isolated use of expletives.
"But for the fact that existing precedent would have permitted this
broadcast, it would be appropriate to initiate a forfeiture
proceeding against [Fox] and other licensees that broadcast the
program prior to 10 p.m." Accordingly, we find that no forfeiture is
warranted in this case.
1. "NYPD Blue" (various dates between January 14 and May 6, 2003)
125. The Commission has received complaints alleging that KMBC
Hearst-Argyle Television, Inc., licensee of Station KMBC-TV, Kansas
City, Missouri, and other network stations affiliated with The ABC
Television Network ("ABC") aired indecent material during several
episodes of "NYPD Blue" broadcast between 9:00 and 10:00 p.m. Central
Standard Time on various dates between January and May 2003. The
complaints allege that, in each of the identified episodes, one or
more characters utter expletives in violation of the Commission's
rules restricting the broadcast of indecent material. The complaints
identify several expletives from the episodes at issue, specifically
"dick," "dickhead" and "bullshit."
126. The terms "dick" and "dickhead" are references to a sexual organ and
therefore fall within the first prong of our indecency definition.
Similarly, "bullshit," whether used literally or metaphorically, is a
vulgar reference to the product of excretory activity and therefore
falls within the first prong of our indecency definition.
Accordingly, we must proceed to the three-part contextual analysis in
our second prong to determine whether the material is patently
offensive as measured by contemporary community standards for the
broadcast medium. For the reasons stated below, we find "dick" and
its derivative, "dickhead," not to be patently offensive in this
context, whereas we find "bullshit" to be patently offensive in this
context. Regarding the former term, we note that last year we found
the same word and its variations not to be indecent in the context
presented.
127. First, we find that the terms "dick" and "dickhead," in this context,
while understandably offensive to some viewers, are not sufficiently
vulgar, explicit, or graphic descriptions of sexual organs or
activities to support a finding of patent offensiveness. Second,
while not dispositive, it is relevant that none of the programs dwell
on these terms. Third, we find that those words, in context, are not
sufficiently shocking to support a finding that they are patently
offensive. Although the words are undeniably coarse and vulgar, they
do not have the same level of offensiveness as the "F-Word" or
"S-Word." As we recently stated, "[a]lthough use of such words may,
depending on the nature of the broadcast at issue, contribute to a
finding of indecency, their use here was not patently offensive."
The broadcasts at issue here used these terms in a similar manner.
Therefore, under our three-part analysis and based on our precedent,
we find the broadcasts of the terms "dick" and its derivative,
"dickhead," as used in the "NYPD Blue" episodes at issue, are not
patently offensive.
128. However, we do conclude that the broadcasts of a derivative of the
"S-Word" at issue here are patently offensive. First, consistent with
our analysis of the "F-Word" in the Golden Globe Awards Order, we
find the "S-Word" to be one of the most vulgar, graphic and explicit
descriptions of excretory activity in the English language. Its use
invariably invokes a coarse excretory image. We conclude that the
broadcast of the "S-Word," under the circumstances presented here, is
vulgar, graphic and explicit.
129. Second, while the word is not dwelled upon, in the Golden Globe
Awards Order, the Commission reversed precedent that had suggested
that the isolated use of an offensive word like the "F-Word" is not
indecent. "[T]he mere fact that specific words or phrases are not
sustained or repeated does not mandate a finding that material that
is otherwise patently offensive to the broadcast medium is not
indecent." Similarly, we find that the fact that these broadcasts
did not dwell on the expletive, though relevant, is not dispositive
under the circumstances presented here.
130. Third, the intentional use of a derivative of the "S-Word" on a
popular network program broadcast is shocking and gratuitous. In this
regard, ABC does not claim that there was any political, scientific
or other independent value to using the word here, or any other
factor to mitigate its offensiveness. To the extent ABC claims that
the word was necessary for dramatic effect, mere dramatic effect does
not justify use of patently offensive expletives during time periods
when numerous children are likely to be in the audience. Programs
utilizing patently offensive expletives for dramatic effect can be
aired after 10 p.m.
131. In sum, because the material is explicit and shocking and gratuitous,
we conclude that the broadcast of the material at issue here that
contained derivatives of the "S-Word" is patently offensive under
contemporary community standards for the broadcast medium and thus
apparently indecent. The complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the audience and the broadcast is legally actionable.
132. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S 1464 because, in context, it constituted
vulgar and coarse language "so grossly offensive to members of the
public who actually hear it as to amount to a nuisance." We indicated
in that decision that the Commission would analyze other potentially
profane words on a case-by-case basis.
133. In this case, we find that the "S-Word" is a vulgar excretory term so
grossly offensive to members of the public that it amounts to a
nuisance and is presumptively profane. Like the "F-Word," it is one
of the most offensive words in the English language, the broadcast of
which is likely to shock the viewer and disturb the peace and quiet
of the home.
134. In rare contexts, language that is presumptively profane will not be
found to be profane where it is demonstrably essential to the nature
of an artistic or educational work or essential to informing viewers
on a matter of public importance. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are not present here. Although in this case, the
profane language may have had some communicative purpose, we do not
believe that ABC has demonstrated that it was essential to the nature
of an artistic or educational work or essential to informing viewers
on a matter of public importance. In this respect, this case is
unlike Saving Private Ryan, where we concluded that deleting
offensive words "would have altered the nature of the artistic work
and diminished the power, realism and immediacy of the film
experience for viewers." While we recognize that the expletives may
have made some contribution to the authentic feel of the program, we
believe that purpose could have been fulfilled and all viewpoints
expressed without the broadcast of expletives.
135. It is undisputed that the complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination under section 73.3999 of the Commission's rules.
Because there was a reasonable risk that children may have been in
the audience at the time the material at issue was broadcast, the
material broadcast is legally actionable.
136. No Sanction Proposed. In the instant case, we find that the ABC
network affiliate Station KMBC-TV consciously and deliberately
broadcast the material in question. Accordingly, we find that the
apparent violations of 18 U.S.C. S 1464 and section 73.3999 of our
rules were willful. The station aired indecent and profane material
in violation of our rules because it broadcast indecent and profane
words in a show that aired between 6 a.m. and 10 p.m. and was watched
by people of all ages. The gratuitous use of indecent and profane
language on a national network broadcast ordinarily would warrant a
forfeiture under the standards announced in the Golden Globe Awards
Order. Nonetheless, we recognize that our precedent at the time of
the broadcast indicated that the Commission would not take indecency
enforcement action against the isolated use of expletives. Thus, we
will not impose any sanction in this case on the basis of our
profanity finding. "But for the fact that existing precedent would
have permitted this broadcast, it would be appropriate to initiate a
forfeiture proceeding against [ABC] and other licensees that
broadcast the program prior to 10 p.m." Accordingly, we find that no
forfeiture is warranted in this case.
1. "The Early Show" (December 13, 2004)
137. The Programming. A viewer filed a complaint that CBS Television
Network ("CBS") affiliate Station KDKA-TV, Pittsburgh, Pennsylvania,
licensed to CBS Broadcasting, Inc., aired a variant of the "S-Word"
during the program "The Early Show" on December 13, 2004, at
approximately 8:10 a.m., Eastern Standard Time, during a live
interview with cast member Twila Tanner of the CBS program "Survivor:
Vanuatu." The Bureau requested a tape of the program from CBS, which
CBS submitted. The tape shows, and CBS does not dispute, that Ms.
Tanner described a fellow contestant of "Survivor: Vanuatu" as a
"bullshitter."
138. Indecency Analysis. The Commission determined in the Golden Globe
Awards Order that the "F-Word" meets the first prong of the indecency
test. We stated, "given the core meaning of the "F-Word," any use of
that word or a variation, in any context, inherently has a sexual
connotation, and therefore falls within the first prong of our
indecency definition." Similarly, we now find that the "S-Word,"
including the variant of that word at issue here, is a vulgar,
graphic, and explicit description of excretory material. Its use
invariably invokes a coarse excretory image, even when its meaning is
not the literal one. Accordingly, we must proceed to analyze whether
the material, in context, is patently offensive as measured by
contemporary community standards for the broadcast medium. Based on
our examination of the three principal factors in our contextual
analysis, we conclude that the material is patently offensive.
139. First, the complained-of material is vulgar, graphic, and explicit.
Consistent with our analysis of the "F-Word" in the Golden Globe
Awards Order, we find the "S-Word" to be one of the most vulgar,
graphic and explicit words describing excrement or excretory activity
in the English language and, for the reasons stated above, its use
inherently has an excretory connotation. We conclude that the
broadcast of the "S-Word," under the circumstances presented here, is
vulgar, graphic and explicit.
140. Second, the fact that the material is not repeated or dwelled upon at
length, while relevant, is not dispositive. As the Commission
indicated in the Golden Globe Awards Order: "the mere fact that
specific words or phrases are not sustained or repeated does not
mandate a finding that material that is otherwise patently offensive
to the broadcast medium is not indecent." Consequently,
non-repetitive broadcasts of the "S-Word" may be found indecent.
141. Third, and most important to our analysis in this specific context,
the use of the "S-Word," particularly during a morning news
interview, is shocking and gratuitous. Because the interview dealt
with the outcome of one of the most popular prime-time shows on
broadcast television among children, it is foreseeable that young
children not only would be in the audience at that time of day, but
also that they would be attentive listeners to the interview with Ms.
Tanner. That CBS or the licensee of Station KDKA-TV failed to take
measures to protect such viewers from vulgarity in a morning
television interview is of particular concern and weighs heavily in
our analysis.
142. Viewing the evidence as a whole, while Ms. Tanner's vulgarity is not
repeated, the patently offensive nature of the broadcast is clearly
established under the first and third principal factors of our
contextual analysis. The complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the audience and the broadcast is legally actionable.
143. Profanity Analysis. In the Golden Globe Awards Order,, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S1464 because, in context, it constituted vulgar
and coarse language "so grossly offensive to members of the public
who actually hear it as to amount to a nuisance." In this case, we
similarly find that the "S-Word" is a vulgar excretory term so
grossly offensive to members of the public that it amounts to a
nuisance and is presumptively profane. For the reasons stated above,
use of the "S-Word" invariably invokes a coarse excretory image. Like
the "F-Word," it is one of the most offensive words in the English
language, the broadcast of which is likely to shock the viewer and
disturb the peace and quiet of the home.
144. In rare contexts, language that is presumptively profane will not be
found to be profane where it is demonstrably essential to the nature
of an artistic or educational work or essential to informing viewers
on a matter of public importance. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are clearly not present here. Although in this case,
Ms. Tanner's profane language may have had some communicative
purpose, we do not believe that it was essential to informing viewers
on a matter of public importance or that editing the language would
have materially impacted the network's function as a source of news
and information.
145. No Sanction Proposed. We find that CBS Broadcasting, Inc., the
licensee of CBS network affiliate Station KDKA-TV, consciously and
deliberately broadcast the program in question. Accordingly, we find
that the apparent violation of 18 U.S.C. S 1464 and section 73.3999
of our rules was willful. Thus based upon our review of the record in
this case, we conclude that the licensee of this station aired
material in violation of 18 U.S.C. S 1464 and our rules by
broadcasting indecent and profane language between 6 a.m. and 10 p.m.
during programming watched by a nationwide audience of all ages. The
gratuitous use of indecent and profane language during a national
broadcast ordinarily would warrant a forfeiture under the standards
announced in Golden Globe Awards Order. However, we recognize that
our precedent at the time of the broadcast did not clearly indicate
that the Commission would take enforcement action against an isolated
use of the "S-Word." "But for the fact that existing precedent would
have permitted this broadcast, it would be appropriate to initiate a
forfeiture proceeding against [CBS] and other licensees that
broadcast the program prior to 10 p.m." Consequently, we find that no
forfeiture is warranted in this case.
A. Broadcasts That Do Not Violate Indecency/Profanity/Obscenity
Restrictions
146. In this section, we conclude that the complained-of programming does
not warrant action against the licensee. Although some of this
programming is undoubtedly upsetting to some viewers, we reach these
determinations either because the programming is not within the scope
of our indecency or profanity definitions or because it is not, in
the contexts before us, patently offensive as measured by
contemporary community standards for the broadcast medium.
1. "Alias" (January 5, 2005)
147. The Programming. The Commission received complaints concerning the
January 5, 2005 broadcast of the program "Alias" by Allbriton
Communications, Inc., licensee of Station WJLA-TV, Washington, D.C.,
from 9:00 to 11:00 p.m. Eastern Standard Time. The show depicts
intelligence agents engaged in various covert operations. In this
episode, a male and female character engage in a covert operation on
a moving train. The female character having completed her portion of
the operation is chased by an assailant. The chase leads to a cargo
car and, after a fight with the assailant, the female character finds
herself hanging out of the cargo car while the train crosses a high
bridge. As the assailant attempts to force the female character off
of the moving train, the male character, having been victorious in a
separate fight with another assailant, rescues the female character
from impending death. The male and female characters hug and stare at
each other. In the next scene, which is the subject of the
complaints, the male and female characters are in bed kissing,
caressing and rubbing against each other. The scene is accompanied by
off-camera music. There are no depictions of sexual organs in the
scene. Afterwards, the couple lay side-by-side and stare at each
other.
148. Indecency Analysis. The episode's references to sexual activities
place it within the subject matter scope of our indecency definition.
In particular, although there are no depictions of sexual organs, the
episode depicts a couple in bed passionately kissing, caressing and
rubbing against each other, each of which is a sexual activity.
Accordingly, we find that the material meets the first prong of our
indecency standard. We now turn to the second prong of our indecency
analysis, whether the material is patently offensive by contemporary
community standards for the broadcast medium.
149. Turning to the first of the three principal factors in our contextual
analysis, the episode does not depict sexual or excretory organs and
does not depict sexual activities in a graphic or explicit way. The
scene involves no display of sexual organs and contains no sexually
graphic language. While viewers see the characters kissing,
caressing, and rubbing; it is not clear whether the characters are
engaged in sexual intercourse.
150. Regarding the second principal factor of our contextual analysis,
while not dispositive, the sexual encounter between the male and
female character is not fleeting.
151. With respect to the third principal component of our contextual
analysis, we find that the sexual activity is not presented in a
pandering, titillating or shocking manner. While the episode shows
the male and female characters kissing, caressing, and rubbing in
bed, the overall context, including the camera angle, the background
music, and the immediately preceding scene, is not shocking in
contrast to clear and graphic depictions of sexual intercourse.
152. Accordingly, although the episode depicts sexual activities within
the meaning of the Commission's indecency definition, taken as a
whole, we conclude that it is not patently offensive as measured by
contemporary community standards for the broadcast medium. While the
sexual encounter between the two characters is not fleeting, the
nature of the encounter is not sufficiently explicit or shocking to
be patently offensive. Accordingly, the complaints are denied.
1. "Will and Grace" (November 11, 2004)
153. The Programming. The Commission received a complaint concerning the
November 11, 2004 broadcast of a "Will and Grace" episode titled
"Saving Grace Again, Part 1." The episode was broadcast at 8:30 p.m.
Central Standard Time over stations affiliated with the NBC
Television Network. In the episode, the lead female character, Grace,
is in her apartment preparing to go out on her first date after her
recent divorce. She is being assisted by her roommate, Will, and is
concerned about her appearance. Before leaving, she asks Will if
there is "anything else" she should know about dating. Will responds
by instructing her to "lean forward" and, as Grace does so, he places
his hands on her dress adjusting her breasts upward to enhance her
appearance. As Grace is leaving the apartment, she is greeted at the
elevator by her friend, Karen, who also knows of the date and places
her hand on Grace's breasts and appears to also adjust her bosoms
upward.
154. Indecency Analysis. The first prong of our indecency analysis is
whether the program depicts or describes sexual or excretory
activities or organs and, therefore, is within the subject matter
scope of the Commission's indecency definition. Although the episode
contains some sexual innuendo, the characters in the scene in
question appear to touch Grace's breast area primarily to enhance her
appearance during her date rather than to elicit a sexual response.
We need not decide, however, whether the scene depicts or describes
sexual activities or organs because even assuming that the first
prong of our indecency analysis is met, we conclude that the material
is not indecent because it is not patently offensive as measured by
contemporary community standards for the broadcast medium.
155. In making this determination, we must look to the full context in
which the material is presented. Here, the context is generally
humorous and consists of light-hearted ridicule and indirect
references to the size of Grace's breasts and the efforts made by her
friends to enhance her sexual appeal for her date by making her
breasts look larger.
156. Regarding the first component of our contextual analysis, the
touching of Grace's breasts is not presented in a graphic or explicit
manner. The program contains no nudity and never explicitly shows or
specifically describes sexual activities or organs. We find that the
episode does not contain "graphic descriptions of sexual activities
and organs or ... language that is so graphic as to qualify as
indecent and profane."
157. With respect to the second component of our contextual analysis,
while not dispositive, we find it relevant that the episode does not
dwell upon or repeat references to sexual organs or activities.
158. Finally, we do not find that the material at issue is used to pander,
titillate, or shock - the third component of our contextual analysis.
Rather, the episode addresses the anxiety associated with a first
date and Grace's friends' efforts to lend assistance -- a topic that
is not shocking, pandering, or titillating. Moreover, the touching of
the breasts is not portrayed in a sexualized manner, and does not
appear to elicit any sexual response from Grace.
159. In sum, we find that, because of the absence of explicit portrayals
of, or references to, sexual organs or activities; the brevity of the
scene at issue; and the absence of shocking, pandering, and/or
titillating effect, the episode, taken as a whole, is not patently
offensive as measured by contemporary community standards for the
broadcast medium, and therefore is not indecent. Accordingly, the
complaint is denied.
1. "Two and a Half Men" (February 21, 2005)
160. The Programming. The Commission received a complaint that the
February 21, 2005 episode of the CBS Television Network program "Two
and a Half Men" had a scene in which a female doctor "was doing a
hernia check" on a male character "with his scrotum in her hand"
while he was trying to seduce her. The broadcast occurred between 9
and 10 p.m. Eastern Standard Time. Based on our review of a videotape
provided by CBS, the scene in question takes place in a doctor's
office and involves a hernia examination, which requires the male
character to remove his pants and cough with the female doctor's hand
on his scrotum. No nudity or touching, however, is actually depicted,
and the examination is not eroticized. During the examination, to
which the male character readily agrees because he apparently finds
the doctor attractive, he comments suggestively that her hands are
warm and asks her out to dinner. She expresses disbelief that he does
not remember her and states that they dated while she was in medical
school until he broke it off without explanation and began seeing her
roommate. The scene ends with him making comments and sounds
indicating that she is painfully squeezing his scrotum.
161. Indecency Analysis. After reviewing a tape of the complained-of
scene, we conclude that it is not indecent. Even assuming that the
scene that the complainant describes falls within the scope of our
indecency definition, it does not, in the context at issue here,
satisfy the second prong of our indecency analysis - that is, it is
not patently offensive under contemporary standards for the broadcast
medium.
162. Looking at the three principal factors that inform our contextual
analysis, first, the material is not graphic or explicit. Although
the episode suggests that one character is touching another's sexual
organs, the apparent touching takes place off-camera; there is never
any nudity, depiction of a sexual organ, or description of sexual
organs or activities. Rather, viewers are left to surmise what is
happening by one character's reactions to another. Turning to the
second factor, while not dispositive, it is relevant that the scene
at issue is not sustained or repeated. Finally, we do not believe the
material shocks, panders, and/or titillates the viewing audience. As
noted, actual touching of the male character's sexual organs is not
depicted or described. Although the male character makes some mildly
suggestive remarks to the doctor during the examination, the exam is
not eroticized or presented in a manner that shocks, panders to, or
titillates the audience. We conclude, based on our examination of
these three factors, that the scene in question is not patently
offensive under contemporary standards for the broadcast medium, and
therefore is not indecent. Accordingly, we deny the complaint.
1. "Committed" (March 8, 2005)
163. The Programming. The Commission received a complaint that the March
8, 2005 episode of the NBC Television Network program "Committed" had
a scene "set in a gymnasium full of children" in which a woman is
"grabbing the genitals of a man while he sang the national anthem."
The broadcast occurred between 6 a.m. and 10 p.m. Eastern Standard
Time. Our review of a videotape of the episode indicates that the
episode does not show the woman touching the man's genitals - the
touching is only suggested - and the suggested touching is not sexual
in nature, but apparently intended by the female character to help
the man hit the high notes of the national anthem.
164. Indecency Analysis. Based on our review of the tape of this episode,
we conclude that it is not indecent. Even assuming that the scene the
complainant describes is within the scope of our indecency
definition, we conclude that it does not satisfy the second prong of
our indecency analysis - that is, it is not patently offensive under
contemporary standards for the broadcast medium.
165. Looking at the three principal factors that inform our contextual
analysis, first, the material is not graphic or explicit. Although
the episode suggests that one character is touching another's sexual
organs, no touching is ever shown, and there is no nudity, depiction
of a sexual organ, or description of sexual activity. Rather, viewers
are left to surmise what is happening by one character's reactions to
another. Turning to the second factor, while not dispositive, it is
relevant that the scene at issue is not sustained or repeated.
Finally, we do not believe the material shocks, panders, and/or
titillates the viewing audience. Rather, it is not presented in a
sexual manner. As noted, the touching is only suggested or implied,
and neither the detail nor the tone of the scene makes it "shocking"
or "titillating." We conclude, based on our examination of these
three factors, that the program in question is not patently offensive
under contemporary standards for the broadcast medium, and therefore
is not indecent. Accordingly, we deny the complaint.
1. "Golden Phoenix Hotel & Casino Commercial" (February 19, 2005)
166. The Programming. The Commission received a complaint concerning a
commercial for the Golden Phoenix Hotel and Casino, located in Reno,
Nevada, broadcast on February 19, 2005 by Sierra Broadcasting Company
("Sierra"), licensee of Station KRNV(TV), Reno, Nevada. The
advertisement features a hotel show entitled "Perfect 10." It begins
with ten women in casino show-style costumes suddenly jumping onto
the bed of a fully clothed man who has been reading "Perfect 10"
magazine, then features excerpts of singing and dancing from the show
mixed with graphics, and ends with a brief view of the man alone on
the bed with his partially bare upper torso and face covered by
lipstick kisses. The voice-over describes the concept and content of
the show and its male star (who is not the man in bed) and identifies
the hotel. The complainant describes the bed scenes as "a mostly
naked man laying in bed with . . . almost completely naked women
exposing their breasts and other body parts [and] acting in a truly
obscene and sexual manner." The complainant alleges that the
commercial is obscene and briefly enumerates the criteria for that
finding.
167. Obscenity Analysis. We do not find the complained-of material
obscene. Although the material does suggest sexual activity, the mere
suggestion of such activity does not render material obscene. Obscene
material, which is not protected by the First Amendment and may not
be broadcast at any time, is defined by a three-prong test set forth
by the Supreme Court in Miller v. California: (1) the average person,
applying contemporary community standards, must find that the
material, as a whole, appeals to the prurient interest; (2) the
material must depict or describe, in a patently offensive way, sexual
conduct specifically defined by applicable law; and (3) the material,
taken as a whole, must lack serious literary, artistic, political or
scientific value. All three prongs of this test must be met before
the material may be found to be obscene. This test is designed "to
isolate `hard core' pornography from expression protected by the
First Amendment." Based on our review, the advertisement at issue
clearly does not constitute the type of "hard core pornography"
covered by Miller.
168. Indecency Analysis. The first prong of our indecency analysis is
whether the program depicts or describes sexual or excretory
activities or organs and, therefore, is within the subject matter
scope of the Commission's indecency definition. Even assuming that
the advertisement's suggestion of sexual activity meets the first
prong of our indecency analysis, however, we conclude that it is not
indecent because it is not patently offensive as measured by
contemporary community standards for the broadcast medium.
169. Turning to the first principal factor in our contextual analysis, we
find that the material at issue is neither explicit nor graphic. In
the first bed scene, the man is shown fully clothed on top of the
bed, and the women's costumes, though sexually suggestive, do not
actually display their sexual organs. Likewise, the women put their
arms around the man in a manner that is suggestive rather than
explicit or graphic. The second bed scene merely shows the man alone
from the waist up, with his shirt unbuttoned and lipstick marks on
his face, without depicting sexual activity or organs.
170. Concerning the second principal factor of our contextual analysis,
the material at issue is repeated or dwelled upon in the sense that
there are two bed scenes, one at the beginning of the advertisement
and one at the end. Note, however, that this factor is not
dispositive. "No single factor generally provides the basis for an
indecency finding."
171. Finally, with respect to the third factor of our contextual analysis,
it does not appear that the bed scenes at issue shock, pander to, or
titillate the viewing audience. No sexual acts or organs are shown.
Among other things, no sexual acts or organs are shown, the
voice-over is not explicitly sexual, and the camera angles do not
present the material in a pandering manner.
172. Viewing the advertisement as a whole, we conclude that it is not
patently offensive. Although the bed scenes are repeated, this factor
is outweighed, in this particular context, by the absence of any
graphic or explicit portrayal of sexual activities or organs and our
finding that it is not shocking, pandering to, or titillating.
Therefore, we conclude that the advertisement is not indecent, and
the complaint is denied.
1. "The Oprah Winfrey Show" (March 18, 2004)
173. The Programming: The Commission received numerous complaints about
the discussion of teenage sexual practices contained in the March 18,
2004 episode of the syndicated television program "The Oprah Winfrey
Show." This particular episode included an examination by the host
and her guests and audience of serious parental/supervisory issues
including the complained-of discussion arising from the movie
"Thirteen." The complaints cite the following discussion, which we
verified from an official transcript of the program:
WINFREY: Yeah. So you say--let's talk about that secret language,
Michelle.
Ms. BURFORD: Yes.
WINFREY: I didn't know any of this.
Ms. BURFORD: I have--yeah, I have--I've gotten a whole new vocabulary, let
me tell you.
WINFREY: I did not know any of this. Does this--does this mean I am no
longer hip?
Ms. BURFORD: Salad-tossing. I'm thinking cucumbers, lettuce, tomatoes. OK?
I am definitely not hip.
WINFREY: OK--so--OK, so what is a salad toss?
Ms. BURFORD: OK, a tossed salad is--get ready; hold on to your underwear
for this one--oral anal sex. So oral sex to the anus is what tossed salad
is. Hi, Mom. OK. A rainbow party is an oral sex party. It's a gathering
where oral sex is performed. And a -rainbow comes from--all of the girls
put on lipstick and each one puts her mouth around the penis of the
gentleman or gentlemen who are there to receive favors and makes a mark in
a different place on the penis, hence the term rainbow. So...
WINFREY: OK. And so what does pre--so what does pretty boy mean? A pretty
boy.
Ms. BURFORD: Pretty boy is a sexually active boy, someone who's been
fairly promiscuous. So it isn't maybe what you would have thought pretty
boy meant in your time.
WINFREY: And dirty means what? Does dirty mean...
Ms. BURFORD: Dirty means a diseased--means a diseased girl. And along with
that the term that some teens are using to mean HIV is High Five, `high'
and then the Roman numeral `V.' High Five. So if you got High-Fived by
Jack, you got diseased by Jack. You got--you got HIV.
WINFREY: It means he gave you HIV.
Ms. BURFORD: He gave you HIV. Yeah.
WINREY: Yeah. OK. And boo--booty call is pretty common, right?
Ms. BURFORD: Yeah, that's--yeah, that's pretty pervasive. Yeah, that's an
early morning or late-at-night call for sex that involves no real
relationship. Maybe 2 AM, guy calls girl, and says, `Meet me at so and so
location, we have sex, we leave,' booty call. You all got that?
174. Indecency Analysis. There can be no question that the complained-of
dialogue describes sexual activities, and therefore falls within the
subject-matter scope of our indecency analysis. We thus turn to the
second prong of our indecency analysis - a determination of whether
the material at issue was patently offensive as measured by
contemporary community standards for the broadcast medium.
175. Turning to the first factor in our contextual analysis, the broadcast
here clearly describes sexual practices in very specific terms, and
is highly graphic and explicit.
176. With respect to the second factor, the dialogue is not brief, but
continues at length. Indeed, the title of the segment is "The Secret
Language of Teens," and the discussion of these terms for sexual
activity is the subject of the entire segment.
177. Given this particular context, though, our findings with regard to
the first two factors of our analysis are outweighed by our
conclusion under the third factor of our contextual analysis that the
complained-of material, in context, is not pandering and is not used
to titillate or shock.
178. The program segment focuses on the "secret lives" of many teenagers.
Through guests -- parents, teenagers, and others -- serious
discussions take place about the disturbing, secret teenage behavior
portrayed in the movie "Thirteen." Guests speak of serious,
potentially harmful behaviors of teens- such as drug use, drinking,
self-mutilation, and sexual activity, how teenagers hide those
behaviors from their parents, and how parents might recognize and
address those behaviors with their teens. The material is not
presented in a vulgar manner and is not used to pander to or
titillate the audience. Rather, it is designed to inform viewers
about an important topic. To the extent that the material is
shocking, it is due to the existence of such practices among
teenagers rather than the vulgarity or explicitness of the sexual
depictions or descriptions. It would have been difficult to educate
parents regarding teenagers' sexual activities without at least
briefly describing those activities and alerting parents to the
little-known terms (i.e., "salad tossing," "rainbow party") that many
teenagers use to refer to them. For many of the same reasons, we have
previously denied complaints about similar educational broadcasts.
179. As we have previously stated, "the manner and purpose of a
presentation may well preclude an indecency determination even though
other factors, such as explicitness, might weigh in favor of an
indecency finding." Here, in light of the overall context of the
broadcast, we find that the complained-of material is not patently
offensive as measured by contemporary community standards for the
broadcast medium, and, therefore, not indecent.
1. Political Advertisement (October 14, 2004)
180. The Programming. The Commission received a complaint regarding a
political advertisement that was aired by Multimedia KDSK, Inc.,
licensee of Stations KDSK-TV and KDNL-TV, St. Louis, Missouri,
between 5:00 and 7:00 p.m. on October 14 and 15, 2004. The
advertisement, sponsored by the Illinois Democratic Party and the
Maag for Justice political campaign, was aired during the Illinois
judicial election cycle. The complainant alleges -- and our review of
photographic stills from the advertisement confirms -- that the spot
included references to rape and sodomy in criticizing the competence
of another candidate in the race for a seat on the Supreme Court of
Illinois. The complainant argues that this advertisement contains
prurient speech, falls outside the First Amendment protections of the
Constitution of the United States, and should not have aired at a
time when children were watching television.
181. Obscenity Analysis. Although the complainant does not explicitly
claim that the advertisement is obscene, we read his allegation that
the spot contains prurient speech and is without First Amendment
protection as an allegation that it is obscene. We find, however,
that the complained-of material is not obscene. Although the material
does refer to sexual activity, the mere mention of such activity does
not render material obscene. Obscene material, which is not protected
by the First Amendment and may not be broadcast at any time, is
defined by a three-prong test set forth by the Supreme Court in
Miller v. California: (1) the average person, applying contemporary
community standards, must find that the material, as a whole, appeals
to the prurient interest; (2) the material must depict or describe,
in a patently offensive way, sexual conduct specifically defined by
applicable law; and (3) the material, taken as a whole, must lack
serious literary, artistic, political or scientific value. This test
is designed "to isolate `hard core' pornography from expression
protected by the First Amendment." All three prongs of this test must
be met before the material may be found to be obscene.
182. The material at issue here is not obscene because it does not meet
the three-part definition articulated in Miller v. California.
Although the advertisement discusses a criminal sexual assault, it is
a political ad in a hotly contested judicial election and therefore,
taken as a whole, it is not without serious political value. Because
the material does not meet the third prong of the Miller definition,
it is not obscene and it is not necessary to consider the other two
prongs of the definition.
183. Indecency Analysis. Turning to our indecency analysis, we find that
the complained-of material describes sexual activity by referencing
rape and sodomy, thereby satisfying the first prong of our indecency
analysis. We next turn to the second prong of our indecency analysis
- a determination of whether the material at issue was patently
offensive as measured by contemporary community standards for the
broadcast medium.
184. After reviewing the material, we find that the advertisement is not
explicit or graphic, the first factor we must consider in our
contextual analysis to determine whether material is patently
offensive. The advertisement references rape and sodomy of children
without supplying any detailed description or depiction. These
references are significantly less graphic than other instances where
political advertisements were considered "graphic" but not indecent.
185. Next, we examine the second factor in our contextual analysis:
whether the material is repeated or dwelled upon. We find that rape
and sodomy are each referenced only once in the advertisement, which
therefore does not repeat or dwell upon these subject areas. After
citing these criminal acts, the advertisement moves on to discuss the
sentence delivered to the perpetrator by one of the judicial
candidates.
186. Finally, we assess whether the material is used in a pandering,
shocking or titillating manner. The advertisement calls attention
primarily to the judgment of a judicial candidate, and mentions
predatory sexual activities to call into question the candidate's
judgment in sentencing a criminal. We do not consider such references
pandering or titillating. While references to rape and sodomy are
shocking, particularly when they involve children, we find that, on
balance, the advertisement advocates against a particular judicial
candidate rather than shocks, panders to, or titillates the audience.
In other words, to the extent that the material has "shock" value, it
is not related to sexual or excretory activity but to the judge's
allegedly "soft attitude" on crime.
187. In this case, we find that all three of the principal factors in our
contextual analysis weigh in favor of a finding that the
complained-of material is not patently offensive as measured by
contemporary community standards for the broadcast medium. While the
references in this political advertisement to rape and sodomy were
understandably upsetting to some viewers, subject matter alone does
not render material indecent. Therefore, we conclude that this
advertisement is not indecent. Accordingly, we deny the complaint.
1. "The Amazing Race 6" (December 21, 2004)
188. The Programming. "The Amazing Race 6" is a CBS Television Network
("CBS") program in which two-person teams race around the world for a
cash prize. The Commission received a complaint regarding the
December 21, 2004 broadcast of the program by CBS affiliate Station
KYW-TV, Philadelphia, Pennsylvania, licensed to CBS Broadcasting,
Inc. According to the complaint, "[m]idway through that episode, my
nine-year-old daughter asked me what was written on the side of a bus
that the contestants were embarking upon. She stated that she thought
that was a bad word that she was not supposed to say. Sure enough,
the words `FU** COPS' was [sic] visible on the side of the bus near
the door where the contestants are getting on the bus."
189. The Bureau obtained a videotape of the subject episode from CBS which
confirms that, during a scene in which two of the contestants leave a
train, the camera shot briefly includes some graffiti stating "Fuck
Cops!" The graffiti is spray-painted in small white letters on the
train's side.
190. Indecency Analysis. We held in the Golden Globe Awards Order that,
given the core meaning of the "F-Word," any use of that word
inherently has a sexual connotation and falls within the first prong
of our indecency definition. The complained-of material here is
language that we have found inherently describes sexual activity. The
material, therefore, warrants further scrutiny to determine whether
it was patently offensive as measured by contemporary community
standards for the broadcast medium.
191. Looking at the three principal factors that comprise our contextual
analysis, we note first that, although the "F-Word" is depicted in
the program, the image is not graphic or explicit. The graffiti is
small, out of focus, and difficult to read. Unless one is looking
directly at or for the words, the average viewer would not even
notice the graffiti. Second, while not dispositive, it is relevant
that the material is not repeated or dwelled upon. Indeed, the image
is displayed only momentarily. Finally, the shot of the graffiti is
not shocking, pandering, or titillating because it is barely visible.
Indeed, the average viewer would not have noticed the graffiti. Since
each of the three factors examined above weighs against a finding of
patent offensiveness, we conclude that the material is not patently
offensive and therefore not indecent.
192. Profanity Analysis. In the Golden Globe Awards Order, we found that
the "F-Word" constituted profane language within the meaning of 18
U.S.C. S 1464 because, in context, it constituted vulgar and coarse
language "so grossly offensive to members of the public who actually
hear it as to amount to a nuisance." Based upon our review of the
record in this case, however, we conclude that CBS did not air
profane material in violation of 18 U.S.C. S 1464. As we have
indicated elsewhere in this Order, we believe that the "F-Word" is
presumptively profane because it is so grossly offensive as to
constitute a nuisance. This, however, is one of the rare instances in
which this presumption is effectively rebutted. Unlike the broadcast
spoken utterance of the "F-Word" at issue in the Golden Globes Award
Order, the written version of the word during this broadcast, for the
reasons mentioned above, would not have been noticed by the average
viewer. As such, we find it impossible to conclude that its broadcast
was "likely to shock the viewer and disturb the piece and quiet of
the home" and thus amount to a nuisance. For all of these reasons, we
find that the broadcast is not profane, and the complaint is denied.
1. Various Programs Containing Expletives (various dates between August
31, 2004 and February 28, 2005)
193. The Programming. The Commission has before it twenty complaints
concerning programming that contains the following allegedly obscene,
indecent, or profane words and phrases: "hell," "damn," "bitch,"
"pissed off," "up yours," "ass," "for Christ's sake," "kiss my ass,"
"fire his ass," "ass is huge," and "wiping his ass." We conclude
that, while these words and phrases are understandably upsetting to
some viewers, in the contexts used here, they are neither obscene,
indecent, nor profane. The complaints include:
(a) an October 19, 2004, complaint against Viacom International, Inc.,
licensee of Station WTOG(TV), St. Petersburg, Florida, for its alleged
October 18, 2004 broadcast of "The Simpsons" program, in which the phrases
"up yours," and "hell" were allegedly aired between 7:00 and 7:30 p.m. The
complainant believes that the material was "obscene."
(b) a November 4, 2004 complaint against TVT License, Inc., licensee of
Station WTVT(TV), Tampa, Florida, for a November 4, 2004 broadcast of the
"North Shore" program, in which the words "bitch" and "hell" were
allegedly broadcast during an unspecified time period. The complainant
believes that the material was "profane."
(c) a November 18, 2004 complaint against KTVI License, Inc., licensee of
Station KTVI(TV), St. Louis, Missouri, for its alleged October 26, 2004
broadcast of the "Father of the Pride" program, in which the phrases
"damn," "hell," and "my ass is huge," were allegedly aired at
approximately 8:00 p.m. The complainant believes that the material "lacks
serious literary, artistic, political or scientific value and meets the
standard of the prohibition issued by the FCC."
(d) a September 22, 2004 complaint against Meredith Corporation, licensee
of Station WSMV-TV, Nashville, Tennessee, for its alleged August 31, 2004
broadcast of the "Father of the Pride" program, in which the phrases
"bitch" and "slutty sister" were used and "an animal trainer was accosted
by a sexually aroused chimpanzee." The complainant further alleges that a
sexual double-entendre was made through the animated lion character's
statement "`Big Daddy's ready for lovin' . . . it may be nine o'clock in
New York, but right here it's mountin' time.'" The complainant alleges
that the material is indecent.
(e) an undated complaint against Viacom International, Inc., licensee of
Station WTOG(TV), St. Petersburg, Florida, for its alleged October 25,
2004 broadcast of the "Girlfriends" program, in which the word "ass" was
allegedly aired during the 9:00 to 9:30 p.m. time period. The complainant
believes that the material was "offensive."
(f) an undated complaint against an unspecified UPN affiliate for its
alleged November 29, 2004 broadcast of the "Half and Half" program in
which the word "damn" was allegedly aired during the 9:00 to 9:30 p.m.
time period. The complainant believes that the material was "profane."
(g) a December 20, 2004 complaint against an unspecified UPN affiliate for
its alleged December 20, 2004 broadcast of the "Second Time Around"
program in which the phrases "get your ass out here," "I gave you the damn
keys," and "damn flashlight" were allegedly aired at approximately 9:50
p.m. The complainant believes that the material was both "profane" and
"obscene."
(h) an undated complaint against Viacom International, Inc., licensee of
Station WTOG(TV), St. Petersburg, Florida, for its alleged December 1,
2004 broadcast of the "America's Next Top Model" program in which the
words "ass" and "bitch" were allegedly aired during the 8:00 to 9:00 p.m.
time period. The complainant believes that the material was "profane."
(i) an undated complaint against Viacom International, Inc., licensee of
Station WTOG(TV), St. Petersburg, Florida, for its alleged December 21,
2004 broadcast of the "Family Matters" program in which the word "hell"
was allegedly aired during the 10:30 and 11:00 a.m. time period. The
complainant believes that the material was both "obscene" and "profane."
(j) an undated complaint against Viacom International, Inc., licensee of
Station WTOG(TV), St. Petersburg, Florida, for its alleged broadcast of
the "Cuts" program on February 28, 2005 during which the words "ass" and
"damn" were allegedly aired during the 8:30 to 9:00 p.m. time period. The
complainant believes that the material was "inappropriate."
(k) an undated complaint against McGraw-Hill Broadcasting Company, Inc.,
licensee of Station KMGH-TV, Denver, Colorado, for its alleged broadcast
of an unspecified program on January 25, 2005 during which the phrases "my
Mom's been wiping his ass," "he said his parents would fire her ass," and
"a pissed-off ex-employee" were allegedly aired during the 9:00 to 10:00
p.m. period. The complainant believes that the material was "obscene,"
"indecent" and "profane."
(l) an April 23, 2005 complaint against TVT License, Inc., licensee of
Station WTVT(TV), Tampa, Florida, for a December 9, 2004 broadcast of the
"North Shore" program, in which the words "ass" and "hell" were allegedly
broadcast between 9 and 10 p.m.. The complainant believes that the
material was indecent.
194. Obscenity Analysis. We deny the complaints to the extent that they
allege the foregoing broadcasts are obscene. The three-part obscenity
test set forth in Miller v. California requires that (1) an average
person, applying contemporary community standards, would find that
the material, as a whole, appeals to the prurient interest; (2) the
material depicts or describes, in a patently offensive way, sexual
conduct specifically defined by applicable law; and (3) the material,
taken as a whole, lacks serious literary, artistic, political, or
scientific value. This test is designed "to isolate `hard core'
pornography from expression protected by the First Amendment."
Nothing in the record indicates that the foregoing broadcasts depict
the kind of "hard core pornography" covered by Miller, or that, as a
whole, they appeal to the prurient interest or lack serious literary,
artistic, political, or scientific value.
195. Indecency Analysis. Although only three complaints explicitly allege
that the cited material is indecent, we will perform our indecency
analysis on all the allegations about offensive language. Several of
the complaints cite similar terms without providing any context. For
example, complainants challenge uses of the words "up yours," "ass,"
"hell," "damn," and "bitch." One complaint, about Station WSMV-TV's
August 31, 2004 broadcast of an episode of "Father of the Pride,"
concerns references to an animated character's sister being "slutty,"
and to various sexual acts, including animal sex and bestiality.
Another complaint, against Station KMGH-TV, concerns the phrases "my
Mom's been wiping his ass," and "he said his parents would fire her
ass," and "either that or a pissed-off ex-employee."
196. The words "hell," "bitch," "slutty," and "damn" do not refer to
sexual or excretory organs or activity and therefore fall outside the
subject matter scope of our indecency rules. We will assume arguendo
that the remaining allegations describe or depict sexual or excretory
organs or activities and therefore fall within the subject matter
scope of our indecency rules. Specifically, the word "ass," and the
phrases "wiping his ass" and "fire her ass," in the context of the
programs, refer to the buttocks, which are sexual and excretory
organs. Likewise, the term "pissed off" is a derivative of "piss,"
which refers to the act of urination. Moreover, the references to
sexual acts, including animal sex and bestiality, describe sexual
activity. Although the phrase "up yours" is more vague, the speaker
arguably is referring to a sexual or excretory organ of the listener.
Thus, we must proceed to determine whether these terms or references
are patently offensive as measured by contemporary community
standards for the broadcast medium under the second step of our
indecency analysis.
197. We find that, although the complained-of word "ass," and the phrases
"up yours," "my ass is huge," "wiping his ass," "fire her ass, and
"pissed off" are coarse expressions, in the context presented, they
are not sufficiently vulgar, graphic, or explicit to support a
finding of patent offensiveness. To the extent the complaints
describe the context in which the word "ass" is used, it is used in a
nonsexual sense to denigrate or insult the speaker or another
character. The word "piss" is used as part of a slang expression that
means "angry." The word "ass" and the phrase "pissed off" do not
invariably invoke coarse sexual or excretory images, and in the
context presented they do not rise to the level of offensiveness of
the "F-Word" or "S-Word." Moreover, while not dispositive, none of
these complaints suggest that the remarks are repeated or dwelled
upon. Although the phrases may have a marginally shocking effect,
that impact is not so marked as to convince us that the overall
context of the broadcast was indecent. Moreover, we note that last
year we found that the fleeting use of some of these same terms was
not indecent in the contexts presented. The manner in which these
terms are used in the complained-of broadcasts resembles that
presented in our previous decisions. Therefore, based on our
precedent, the complained-of broadcasts are not indecent.
198. With regard to the remaining allegations in the complaint against the
August 31, 2004 episode of "Father of the Pride," we find that the
material is not indecent. First, the animated lion character's
utterance of the phrase "it's mountin' time," although apparently
used as a sexual reference, is not, in the context of the instant
broadcast, sufficiently explicit or graphic to be deemed patently
offensive. While the animated imagery accompanying the lion
character's comment does portray him making a circular pelvic motion
while uttering the phrase "mountin' time," it does not contain any
depiction of sexual organs or explicit sexual acts. Moreover, the
sexual reference is neither repeated nor dwelled upon, and is not
shocking, pandering, or titillating. Similarly, we find no merit to
the allegation that the material visually depicting "an animal
trainer [being] accosted by a sexually aroused chimpanzee" is
indecent. Contrary to the complainant's allegation of portrayed
bestiality, the scene in question depicts the effect of a trainer's
application of animal pheromones, apparently arousing a chimpanzee to
attempt to caress and nuzzle him. It does not contain any depiction
of sexual organs or sexually explicit acts and is not titillating or
shocking. Consequently, we find that the foregoing material, while
offensive to some viewers, is not patently offensive under our
indecency standard.
199. Profanity Analysis. Several of the complaints allege that the use of
the words "bitch," "hell" or "damn," or phrases including their
variants, are profane. These words are not sexual or excretory terms,
and thus are presumed not to be profane. On the other hand, the words
"ass" and "piss" and their derivatives do describe sexual or
excretory activities. As noted above, we discussed these terms in two
decisions last year, finding that neither was not sufficiently
graphic or explicit in context to be indecent, and further holding
that the term "pissed" was not profane in the context presented.
Similarly, we conclude that the use of these terms here in context is
not so grossly offensive to members of the public as to amount to a
nuisance and thus be deemed profane. Accordingly, we deny the
complaints.
1. "Family Guy" (January 16, 2005)
200. The Programming. The Commission received a complaint concerning the
January 16, 2005 broadcast of "Family Guy" over Fox Television
Network-affiliated stations, and specifically Station WTTG-TV,
Washington, D.C., at 9:00 p.m. Eastern Standard Time. The episode in
question, titled "And The Weiner Is ...," includes dialogue in which
cartoon characters say "penis," along with euphemisms for the male
sex organ, within the episode's subject: a father's concern that he
is not as well-endowed as his son.
201. Indecency Analysis. The episode's references to "penis" clearly
places it within the subject matter scope of our indecency definition
as the word "penis" refers to a sexual organ. We thus turn to the
second prong of our indecency analysis - whether the material at
issue was patently offensive as measured by contemporary community
standards for the broadcast medium. In making this determination, we
must look to the full context in which the material is presented,
including the explicit or graphic nature of the description, whether
it dwells on or repeats at length descriptions of sexual organs or
activities, and whether it appears to pander or is used to titillate
or shock. While the program's cartoon format may make it more
attractive to younger viewers, the context is generally a humorous
series of scenes of increasingly desperate behavior by the cartoon
family father as he tries to compensate for his self-perceived
inadequacies after learning that his son's penis is larger than his
own.
202. Regarding the first component of our contextual analysis, the program
contains no nudity and never actually shows or graphically describes
any sexual organ. The episode merely refers to the cartoon son's
penis and shows the cartoon father's and mother's reactions upon
learning of it. Moreover, the specific euphemisms that are employed,
such as "wang" and "little banana," are relatively inoffensive. In a
similar case, the Commission found that several episodes of the
program "Coupling" were not sufficiently vulgar, explicit, or graphic
to qualify as indecent, even though they repeatedly referred to
sexual activities and organs. The Commission concluded that although
the episodes included "sustained and repeated use of sexual innuendo
and double entendre . . . none of the episodes contain[ed] graphic
descriptions of sexual activities and organs or use[d] language that
is so graphic as to qualify as indecent and profane."
203. Regarding the second component of our contextual analysis, the
episode does dwell upon and repeat various references to penises. As
we have noted previously, however, no single factor in our indecency
analysis is generally dispositive.
204. Finally, we do not find that the material is used to pander,
titillate, or shock. Rather, the episode at issue addresses the
father's feelings of inferiority, and the topic is presented in an
indirect, humorous manner, without the use of graphic or explicit
details.
205. In sum, although the word "penis" and euphemisms for that word are
repeated several times in the episode, we find that because of the
absence of explicit or graphic descriptions or depictions of any
sexual organ, along with the absence of shocking, pandering, and/or
titillating effect, the episode, taken as a whole, is not patently
offensive as measured by contemporary community standards for the
broadcast medium and is therefore not indecent. Accordingly, the
complaint is denied.
1. "The Academy Awards" (February 27, 2005)
206. The Programming. The Commission received several complaints against
the ABC Television Network's broadcast of "The Academy Awards"
program, alleging that show host Chris Rock uttered vulgar and
offensive comments including "sit their asses down," and the
statement that the "Superman" film "sucked." One complainant further
alleges that the program featured a video montage in which a male
actor was "naked from the waist up, standing in the background,
[while a female actor] was apparently eating a sausage or other item,
but it appeared to be superimposed and gave the appearance of her
performing oral sex on the man." The segments in question were all
broadcast during the evening of February 27, 2005 before 10 p.m.
Eastern Standard Time.
207. Indecency Analysis. With respect to the first prong of the indecency
analysis, we find that the broadcast falls within the scope of the
indecency definition. We will assume arguendo that, in certain
contexts, the term "sucked" may refer to oral sex. The phrase "sit
their asses down" refers to the buttocks, which are sexual and
excretory organs. Similarly, the video clip described in the
complaint uses video images to allude to oral sex, a sexual activity,
and thus is within the scope of our indecency definition. We
therefore evaluate whether the foregoing material is "patently
offensive" as measured by the contemporary community standards for
the broadcast medium under the second step of our indecency analysis.
208. We find that although the complained-of phrases "sit their asses
down" and "sucked" may be coarse expressions, in the context
presented, they are not sufficiently vulgar, explicit, or graphic to
support a patent offensiveness finding. First, in the context
presented, the word "sucked" is not an explicit or graphic
description of sexual or excretory organs or activities. Its use does
not invariably invoke a coarse sexual image. The phrase "sit their
asses down" includes a coarse expression for the buttocks, but
involves a command to sit down, rather than referring to sexual or
excretory activity. In addition, while not dispositive, neither
remark is repeated or dwelled upon. Furthermore, while this
terminology may have been upsetting to some viewers, it is not
sufficiently graphic, explicit, or sustained to support the
conclusion that it was shocking, pandering or titillates the
audience. Although use of such phrases may, depending on the context
involved, contribute to a finding of indecency, their use here was
not patently offensive and therefore not indecent.
209. Moreover, we find that the program's video montage, which allegedly
"gave the appearance of" a depiction of oral sex, is not actionably
indecent. In a recent case, the Commission denied substantially
similar complaints directed against the broadcast of segments from
the film "Austin Powers: The Spy Who Shagged Me." Significantly, in
this case, as in the "Austin Powers" film, the material cited in the
complaint does not actually depict sexual organs or activities; it
only uses superimposed images to allude to oral sex. Therefore, we
find that the material does not explicitly or graphically depict
sexual organs or activities. Furthermore, the image was extremely
brief, lasting a mere fraction of a second. Finally, the visual
allusion, in context, is not shocking or titillating, and in any
event, is simply not explicit and graphic enough to be patently
offensive as measured by contemporary community standards for the
broadcast medium. Therefore, we find that it was not indecent.
Accordingly, the complaints are denied.
1. "8 Simple Rules" (February 4, 2005)
210. The Programming. The Commission received a complaint regarding the
February 4, 2005 broadcast of the ABC Television Network program, "8
Simple Rules" between 6 a.m. and 10 p.m. Eastern Standard Time.
According to the complaint, "[a]t the conclusion of the episode, I
observed the mother and the oldest child as they stood near a hamster
cage in the home. The older girl looked into a hamster cage and asked
`... what is it doing?' ... then the girl said `... hamsterbating.'
This was a reference [that] the hamster was `masturbating.'" The
complaint urges the Commission to issue a public warning or fine
against ABC and "to take a position not to allow this type of
behavior and language on television."
211. Indecency Analysis. As an initial matter, we will assume but not
decide that the broadcast falls within the subject-matter prong of
our analysis, as it references the sexual activity of masturbation.
We conclude, however, that the program is not indecent because it is
not patently offensive as measured by the contemporary community
standards for the broadcast medium.
212. Turning to the three principal factors that inform our contextual
analysis, while the use of the term "hamsterbating" would be
interpreted by many viewers as constituting a veiled reference to the
sexual activity of masturbation, the term is neither graphic nor
explicit, and the program never depicts any sexual activity or organ.
Moreover, although not dispositive, it is also relevant to our
analysis that the allusion to masturbation is not in any way
sustained or dwelled upon. Finally, we conclude that while the use of
the term "hamsterbating" may have disturbed some viewers of this
program, which is aimed in part at a younger audience, the term's
shock value is marginal at best, and in this context is outweighed by
the non-explicit and non-repeated nature of the allegedly indecent
material. For all of these reasons, we deny the complaint.
1. "The Today Show" (January 11, 2005)
213. The Programming. The Commission received a complaint about the
January 11, 2005 broadcast of "The Today Show" between 6 a.m. and 10
p.m. Eastern Standard Time. That program contained a segment showing
scenes of the devastating floods and mudslides that had occurred in
California and of various rescue efforts. In one scene, viewers see
an attempt to pull a man wearing only a shirt from raging water onto
the safety of a highway overpass. As the man is hauled from water
level to the boat, his penis is briefly exposed. At the end of the
scene, the rescuers lose their grip on the man, and he goes crashing
back into the water, narrowly missing a pillar of the overpass as he
falls.
214. Indecency Analysis. In conducting our indecency analysis in this
case, it is important to recognize and emphasize the context of the
broadcast material. The complained-of segment contained
contemporaneous coverage of an important news event. Therefore, we
must exercise particular caution here as the complaint involves
programming that implicates core First Amendment concerns. The first
prong of our indecency analysis is whether the program depicts or
describes sexual or excretory activities or organs and, therefore, is
within the subject matter scope of the Commission's indecency
definition. The broadcast clearly falls within the subject matter
scope of our indecency definition because the scene includes a view
of a man's penis, which is a sexual organ. We thus turn to the second
prong of our indecency analysis - a determination of whether the
material at issue was patently offensive as measured by contemporary
community standards for the broadcast medium.
215. Regarding the first principal component of our contextual analysis,
although the Commission previously has found exposure of adult sexual
organs to be graphic and explicit in certain situations, in this
particular context, we find that the complained-of material is not
graphic or explicit. The shot of the man's penis is not at close
range, and the overall focus of the scene is on the rescue attempt,
not on the man's sexual organ. Here, the distant image of a man's
penis in footage displaying efforts to rescue him from mortal peril
is not explicit or graphic.
216. With respect to the second principal component of our contextual
analysis, the segment does not dwell on or repeat the image of the
victim's penis. To the contrary, the segment can be fairly described
as providing only a brief glimpse of the penis that is incidental to
the overall action portrayed - a human rescue effort.
217. Turning to the final principal component of our analysis, and the
most important in this particular context, we find that the material
does not pander to, titillate, or shock the viewing audience. Rather,
it contains coverage of a significant news event and shows the human
experience behind that event. To the extent there is shock value to
the footage, it derives from the overall action portrayed -- the
effort to rescue a human life -- not from the footage's minimal
sexual content.
218. Since the material taken as a whole is not graphic or explicit, does
not dwell on or repeat images of a sexual organ or activity, and does
not appear to shock, pander, and/or titillate, it does not satisfy
the second prong of our indecency analysis and, therefore, we deny
the complaint. In doing so, we again recognize the need for
particular caution with respect to complaints implicating the
editorial judgment of broadcast licensees in presenting news and
public affairs programming, as these matters are at the core of the
First Amendment's free press guarantee. We also emphasize the
critical importance of context in determining whether a broadcast is
patently offensive. In this regard, the contrast between this case
and the Young Broadcasting NAL is instructive. Each involves the
brief, accidental exposure of male frontal nudity during a news
program. Unlike in this case, however, the performer's penis in the
Young Broadcasting NAL was exposed at relatively close range. More
importantly, the display was not incidental to the coverage of a news
event; rather, it occurred during an interview of performers who
appear nude to manipulate their genitalia, and as the performer stood
up to give an off-camera demonstration to the show's hosts. Here, in
contrast, the program's focus is a rescue effort, and the
complained-of material is incidental and easily could evade the
notice of a viewer focused on this effort.
1. "The Simpsons" (September 9, 2004)
219. The Programming. The Commission received a complaint regarding the
broadcast of an episode of "The Simpsons" over Station WTTG(TV),
Washington, D.C., at 6:30 p.m. Eastern Daylight Time on September 9,
2004. The complaint states that the program contains a graphic and
explicit depiction of a scene in a strip club. The Bureau requested
and received a videotape of the program in question from Fox
Television Stations, Inc., the licensee of the station.
220. "The Simpsons" is an animated comedy series featuring a number of
regular characters, including the elderly Mr. Burns and his assistant
Smithers. The complained-of episode, entitled "Hunka Hunka Burns In
Love," deals with Mr. Burns's romantic ineptitude. The scene in
question shows Mr. Burns leading Smithers into a club with a "Girls
Girls Girls" sign and saying, "Maybe there are some girls in here."
In the club, female cartoon characters dance around poles clothed in
two-piece or one-piece lingerie or underwear. Mr. Burns reacts by
saying, "Great Heavens! This is one of those nude female fire
stations! Oh, I'd always be second place to some kitten stuck in a
tree. Let's go, Smithers." Smithers is momentarily depicted as
crouching and whimpering in embarrassment as he is cornered by two
dancers. Although the complaint states that the scene depicts
physical contact between Smithers and a female cartoon dancer's
buttocks, we were unable to confirm this statement based on our
viewing of the tape.
221. Indecency Analysis. As an initial matter, for purposes of this
analysis, we assume without deciding that the depiction of female
cartoon characters dancing in lingerie falls within the
subject-matter prong of our indecency standard. We conclude, however,
that the program is not indecent because it is not patently offensive
as measured by the contemporary community standards for the broadcast
medium.
222. Regarding the first principal component of our contextual analysis,
we conclude that the complained-of material does not graphically or
explicitly depict sexual organs or activities. Although the movements
of the two female dancers shown with Smithers are somewhat sexually
suggestive, and one of the dancers is shown from behind wearing a
"thong," the scene is not graphic. No cartoon character is shown
completely nude, and there are no clear depictions of physical
contact involving the cartoon characters's sexual organs in the
scene. Moreover, although a cartoon might be patently offensive if it
contained sufficiently graphic or explicit depictions of sexual or
excretory organs or activities, in this context the animation weighs
against a finding of patent offensiveness: the characters are linear
representations, and to the extent they are depicted in
sexually-suggestive clothing or situations, the animation makes those
depictions inherently less graphic and explicit than, for example,
those involved in the "Video Musicales" program discussed above in
Section III.A.4.
223. With respect to the second principal component of our contextual
analysis, the scene is relatively brief and does not dwell on
depictions of sexual organs or activities. Turning to the final
principal component of our analysis, we do not find that the material
is panders to, titillates, or shocks the viewing audience within the
context of the program at issue. Rather, the scene is a relatively
brief vignette about the male characters' romantic ineptitude. Since
the material taken as a whole is not graphic, explicit, or sustained
and does not appear to shock, pander, and/or titillate, we find that
it is not patently offensive. Accordingly, we deny the complaint.
1. "America's Funniest Home Videos" (February 5, 2005)
224. Programming. The Commission received a complaint regarding the
February 5, 2005 episode of the ABC Television Network program
"America's Funniest Videos" ("AFV") that was broadcast over Station
WHAM (TV), Rochester, New York. The complaint alleged that this
episode, which aired from 8:00 to 8:30 p.m. Eastern Standard Time,
included a clip in which a "butt plug" was allegedly inserted into a
naked, male infant. As part of the investigation in this matter, the
Enforcement Bureau requested and received from the licensee a
videotape of that AFV episode. This videotape reveals that the
episode depicted a naked infant falling back onto his pacifier, which
then becomes wedged between his buttocks.
225. Indecency Analysis. The first prong of our indecency analysis is
whether the program depicts or describes sexual or excretory
activities or organs, and, therefore, is within the subject matter
scope of the Commission's indecency definition. Because this
videotape depicts a child's nude buttocks, we find that it depicts
both excretory and sexual organs, and the broadcast therefore falls
within the subject matter scope of our indecency analysis. We must
then turn to the next part of our analysis - whether the broadcast
was "patently offensive" as measured by contemporary community
standards for the broadcast medium.
226. Turning to the first principal factor in our contextual analysis of
whether material is patently offensive, the segment at issue shows a
naked infant falling back onto his pacifier, which then becomes
wedged between his buttocks and is therefore marginally explicit.
With regard to the second factor, while not dispositive, the
broadcast does not dwell on or repeat at length any description or
depiction of sexual or excretory organs or activities. Rather, the
program shows the relevant segment once and then moves on to other
videotapes. And finally, the footage does not appear to shock,
pander, or titillate. The depiction, submitted by the infant's
parents, is not sexualized in any manner whatsoever. In conclusion,
based on our review of the full context of the broadcast, we find
that the broadcast is not indecent. Although, as indicated above, the
footage is somewhat explicit, its brevity and the absence of any
shocking, pandering, or titillate effect on the audience outweigh
that factor in our analysis. As we held in the Indecency Policy
Statement, "no single factor generally provides the basis for an
indecency finding." Accordingly, the complaint is denied.
1. "Green Bay Packers v. Minnesota Vikings" (January 9, 2005)
227. The Programming. The Commission received complaints regarding a
broadcast over the Fox Television Network ("Fox" or "Fox Network") on
the evening of January 9, 2005 prior to 10 p.m. Eastern Standard
Time. The complaints allege that during the broadcast of the National
Football League playoff game between the Green Bay Packers and the
Minnesota Vikings, Fox broadcast the image of a player for the
visiting Vikings team who, after scoring a touchdown, acted as if he
were lowering his pants and exposing his buttocks to the crowd at
Green Bay's Lambeau Field, although he remained fully clothed at all
times. In other words, the player pretended to "moon" the crowd. The
complaints seek an indecency finding and proposed monetary
forfeitures against all Fox Network affiliate stations.
228. Indecency Analysis. Assuming without deciding that the broadcast of a
mimed "mooning" depicts a sexual or excretory organ and thus falls
within the subject matter prong of our indecency analysis, we
nevertheless conclude that the material is not patently offensive as
measured by contemporary community standards for the broadcast medium
and thus is not indecent.
229. Each of the three principal factors that inform our contextual
analysis weighs against a finding of patent offensiveness. First, the
display involves only mimed actions by a fully-clothed player and
thus is not graphic or explicit. Second, although not dispositive, it
is also relevant that the images are not dwelled upon; the images
appear for only a few seconds, and are not replayed during the
broadcast. Finally, while we can understand why many viewers may have
perceived the player's touchdown celebration as plainly
inappropriate, we do not believe that his fully clothed display
titillates or rises to the level of shocking behavior. Accordingly,
we deny the complaints.
1. "Medium" (January 17, 2005)
230. The Programming. The Commission received a complaint concerning the
NBC Television Network ("NBC") broadcast of the program "Medium," at
9:00 p.m. Central Standard Time on January 17, 2005. The Enforcement
Bureau requested and received a videotape of the program from NBC. A
review of the tape discloses that the episode begins with a husband
and wife being counseled by a therapist in an office setting. During
the course of conversation with the couple, the therapist asks the
husband to act out his selfish feelings by doing something with (or
to) his wife, even if society might not approve of the act, and tells
him that he should not be embarrassed because the therapist "has seen
it all." In response, the husband stands up and faces this wife. He
then pulls out a gun from his waist, and shoots his wife in the face.
The complainant objects to this portrayal of sex associated with
violence against women broadcast at that hour of the evening.
231. Indecency Analysis. As discussed above, our definition of indecent
programming is limited to material that describes or depicts sexual
or excretory organs or activities. Violence per se is not currently
within the defined subject matter scope of these limitations on
broadcast programming. The complained-of portion of the episode
arguably contains dialogue that suggests the possibility that the
husband might wish to engage in some kind of sexual activity with his
wife. However, no such activity is described or takes place, and thus
the material is not within the scope of our indecency definition.
Accordingly, we must deny the complaint.
232. We wish to emphasize, however, that we understand the concerns of the
complainant and others with the issue of violent programming on
television, as well as the bizarre and shocking violence that is
portrayed in the complained-of episode. Last year, at Congress's
urging, we initiated a proceeding to examine violent television
programming and its impact on children. In doing so, we sought
information about the nature and amount of violent television
programming, its effects, what measures are available to control
exposure to media violence, and the need for and the legal basis of
our ability, if any, to regulate in this area. We have invited the
public to submit comments for our consideration, and are currently
reviewing those comments and determining our next steps.
IV. ordering clauses
233. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that NBC Telemundo License Co., licensee of
Station KWHY-TV, Los Angeles, California is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of $32,500 for
willfully violating 18 U.S.C. S 1464 and section 73.3999 of the
Commission's rules by its October 9, 2004, broadcast of the movie
"Con El Corazon En La Mano."
234. IT IS FURTHER ORDERED that a copy of this NAL and MO&O shall be sent
by Certified Mail, Return Receipt Requested, to F. William LeBeau,
Senior Regulatory Counsel & Assistant Secretary, NBC Universal, Inc.,
1299 Pennsylvania Avenue, N.W., 11th Floor, Washington, D.C. 20004.
235. IT IS FURTHER ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that Sherjan Broadcasting Company, Inc., licensee
of Station WJAN-CA, Miami, Florida, is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of $32,500 for
willfully violating 18 U.S.C. S 1464 and section 73.3999 of the
Commission's rules by its October 19, 2004, broadcast of the
"Fernando Hidalgo Show."
236. IT IS FURTHER ORDERED that a copy of this NAL and MO&O shall be sent
by Certified Mail, Return Receipt Requested, to Peter Tannenwald,
counsel for Sherjan Broadcasting Company, Inc., Irwin Campbell &
Tannenwald, PC, 1730 Rhode Island Avenue, N.W., Suite 200,
Washington, D.C. 20036-3101.
237. IT IS FURTHER ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that Aerco Broadcasting Corp., licensee of
Station WSJU-TV, San Juan, Puerto Rico, is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of $220,000 for
willfully and repeatedly violating 18 U.S.C. S 1464 and section
73.3999 of the Commission's rules by its broadcast of various music
videos, described above in the NAL and MO&O, during the "Video
Musicales" program from January through March 2002.
238. IT IS FURTHER ORDERED that a copy of this NAL and MO&O shall be sent
by Certified Mail, Return Receipt Requested, to John A. Borsari,
counsel for Aerco Broadcasting Corp., John A. Borsari & Associates,
PLLC, 2111 Wilson Blvd., P.O. Box 100009, Suite 700, Arlington,
Virginia 22210; and David Ramos, D'Vanguardia, 497 Ave. E. Pol.
Apartado 187, San Juan, Puerto Rico 00926-5636.
239. IT IS FURTHER ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that WBDC Broadcasting, Inc., licensee of Station
WBDC-TV, Washington, D.C., is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of $27,500 for willfully
violating 18 U.S.C. S 1464 and section 73.3999 of the Commission's
rules by its February 8, 2004 broadcast of "The Surreal Life 2."
240. IT IS FURTHER ORDERED that a copy of this NAL and MO&O shall be sent
by Certified Mail, Return Receipt Requested, to Arthur H. Harding,
Fleischman and Walsh, LLP, counsel for the WB Television Network,
1919 Pennsylvania Avenue, N.W., Suite 600, Washington, D.C. 20006; R.
Clark Wadlow and Thomas P. Van Wazer, Sidley Austin Brown & Wood LLP,
counsel for WBDC Broadcasting, Inc., 1501 K Street, N.W., 10th Floor,
Washington, D.C. 20005; and Dan Issett, Director of Corporate and
Government Affairs, Parents Television Council, 325 S. Patrick
Street, Alexandria, Virginia 22314.
241. IT IS FURTHER ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that San Mateo County Community College District,
licensee of noncommercial educational Station KCSM-TV, San Mateo,
California, is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of $15,000 for willfully violating 18 U.S.C.
S 1464 and section 73.3999 of the Commission's rules by its broadcast
of "The Blues: Godfathers and Sons" on March 11, 2004.
242. IT IS FURTHER ORDERED that a copy of this NAL and MO&O shall be sent
by Certified Mail, Return Receipt Requested, to Marilyn R. Lawrence,
General Manager, Station KCSM-TV, San Mateo County Community College
District, 1700 West Hillsdale Blvd, San Mateo, California 94402.
243. IT IS FURTHER ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that KTVI License, Inc., licensee of Station
KTVI(TV), St. Louis, Missouri, is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of $27,500 for willfully
violating 18 U.S.C. S 1464 and section 73.3999 of the Commission's
rules by its broadcast of "The Pursuit of D.B. Cooper" on March 15,
2003.
244. IT IS FURTHER ORDERED that a copy of this NAL and MO&O shall be sent
by Certified Mail, Return Receipt Requested, to John C. Quale,
Counsel for KTVI License, Inc., Skadden Arps Meagher & Flom, LLP,
1440 New York Avenue, N.W., Washington, D.C. 20005-2111.
245. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release of these NALs,
each licensee identified above SHALL PAY the full amount of its
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of their proposed forfeiture.
246. Payment of each forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. Payments must include the relevant NAL/Acct. No. and FRN
No. referenced above. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 358340, Pittsburgh,
Pennsylvania 15251-8340. Payment by overnight mail may be sent to
Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
Pennsylvania 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number
911-6106.
247. The responses, if any, must be mailed to William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th Street, S.W., Room 4-C330,
Washington D.C. 20554, and MUST INCLUDE the relevant NAL/Acct. No.
referenced for each proposed forfeiture above.
248. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the respondent
submits: (1) federal tax returns for the most recent three-year
period; (2) financial statements prepared according to generally
accepted accounting practices ("GAAP"); or (3) some other reliable
and objective documentation that accurately reflects the respondent's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
249. Requests for payment of the full amount of these NALs under an
installment plan should be sent to: Associate Managing Director --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554.
250. Accordingly, IT IS ORDERED that the complaints in the
above-referenced NAL proceedings ARE GRANTED to the extent indicated
herein, AND ARE OTHERWISE DENIED, and the complaint proceedings ARE
HEREBY TERMINATED.
251. IT IS FURTHER ORDERED that the complaints referenced in these NALs
and MO&O are GRANTED to extent set forth herein and otherwise DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show;
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005; Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broadcast of the Program "Without A
Trace"
Congress has long prohibited the broadcasting of indecent and profane
material and the courts have upheld challenges to these standards. But the
number of complaints received by the Commission has risen year after year.
They have grown from hundreds, to hundreds of thousands. And the number of
programs that trigger these complaints continues to increase as well. I
share the concerns of the public - and of parents, in particular - that
are voiced in these complaints.
I believe the Commission has a legal responsibility to respond to them and
resolve them in a consistent and effective manner. So I am pleased that
with the decisions released today the Commission is resolving hundreds of
thousands of complaints against various broadcast licensees related to
their televising of 49 different programs. These decisions, taken both
individually and as a whole, demonstrate the Commission's continued
commitment to enforcing the law prohibiting the airing of obscene,
indecent and profane material.
Additionally, the Commission today affirms its initial finding that the
broadcast of the Super Bowl XXXVIII Halftime Show was actionably indecent.
We appropriately reject the argument that CBS continues to make that this
material is not indecent. That argument runs counter to Commission
precedent and common sense.
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Complaints Regarding Various Television Broadcasts Between
January 1, 2002 and March 12, 2005
Complaints Against Various Television Licensees Concerning Their December
31, 2004 Broadcast of the Program "Without A Trace," Notice of Apparent
Liability for Forfeiture
Complaints Against Various Television Licensees Concerning Their February
1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, Forfeiture
Order
In the past, the Commission too often addressed indecency complaints with
little discussion or analysis, relying instead on generalized
pronouncements. Such an approach served neither aggrieved citizens nor
the broadcast industry. Today, the Commission not only moves forward to
address a number of pending complaints, but does so in a manner that
better analyzes each broadcast and explains how the Commission determines
whether a particular broadcast is indecent. Although it may never be
possible to provide 100 percent certain guidance because we must always
take into account specific and often-differing contexts, the approach in
today's orders can help to develop such guidance and to establish
precedents. This measured process, common in jurisprudence, may not
satisfy those who clamor for immediate certainty in an uncertain world,
but it may just be the best way to develop workable rules of the road.
Today's Orders highlight two additional issues with which the Commission
must come to terms. First, it is time for the Commission to look at
indecency in the broader context of its decisions on media consolidation.
In 2003 the FCC sought to weaken its remaining media concentration
safeguards without even considering whether there is a link between
increasing media consolidation and increasing indecency. Such links have
been shown in studies and testified to by a variety of expert witnesses.
The record clearly demonstrates that an overwhelming number of the
Commission's indecency citations have gone to a few huge media
conglomerates. One recent study showed that the four largest radio
station groups which controlled just under half the radio audience were
responsible for a whopping 96 percent of the indecency fines levied by the
FCC from 2000 to 2003.
One of the reasons for the huge volume of complaints about excessive sex
and graphic violence in the programming we are fed may be that people feel
increasingly divorced from their "local" media. They believe the media no
longer respond to their local communities. As media conglomerates grow
ever larger and station control moves farther away from the local
community, community standards seem to count for less when programming
decisions are made. Years ago we had independent programming created from
a diversity of sources. Networks would then decide which programming to
distribute. Then local affiliates would independently decide whether to
air that programming. This provided some real checks and balances.
Nowadays so many of these decisions are made by vertically-integrated
conglomerates headquartered far away from the communities they are
supposed to be serving--entities that all too often control both the
distribution and the production content of the programming.
If heightened media consolidation is indeed a source for the violence and
indecency that upset so many parents, shouldn't the Commission be cranking
that into its decisions on further loosening of the ownership rules? I
hope the Commission, before voting again on loosening its media
concentration protections, will finally take a serious look at this link
and amass a credible body of evidence and not act again without the facts,
as it did in 2003.
Second, a number of these complaints concern graphic broadcast violence.
The Commission states that it has taken comment on this issue in another
docket. It is time for us to step up to the plate and tackle the issue of
violence in the media. The U.S. Surgeon General, the American Academy of
Pediatrics, the American Psychological Association, the American Medical
Association, and countless other medical and scientific organizations that
have studied this issue have reached the same conclusion: exposure to
graphic and excessive media violence has harmful effects on the physical
and mental health of our children. We need to complete this proceeding.
STATEMENT OF
Commissioner Jonathan S. Adelstein
Concurring in Part, Dissenting in Part
Re: Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
Opinion and Order
I have sworn an oath to uphold the Constitution and to carry out the laws
adopted by Congress. Trying to find a balance between these obligations
has been challenging in many of the indecency cases that I have decided. I
believe it is our duty to regulate the broadcast of indecent material to
the fullest extent permissible by the Constitution because safeguarding
the well-being of our children is a compelling national interest. I
therefore have supported efforts to step up our enforcement of indecency
laws since I joined the Commission.
The Commission's authority to regulate indecency over the public airwaves
was narrowly upheld by the Supreme Court with the admonition that we
should exercise that authority with the utmost restraint, lest we inhibit
constitutional rights and transgress constitutional limitations on
government regulation of protected speech. Given the Court's guidance in
Pacifica, the Commission has repeatedly stated that we would judiciously
walk a "tightrope" in exercising our regulatory authority. Hence, within
this legal context, a rational and principled "restrained enforcement
policy" is not a matter of mere regulatory convenience. It is a
constitutional requirement.
Accordingly, I concur in part and dissent in part with today's decision
because, while in some ways the decision does not go far enough, in other
ways it goes too far. Significantly, it abruptly departs from our
precedents by adopting a new, weaker enforcement mechanism that
arbitrarily fails to assess fines against broadcasters who have aired
indecent material. Additionally, while today's decision appropriately
identifies violations of our indecency laws, not every instance determined
to be indecent meets that standard.
We have previously sought to identify all broadcasters who have aired
indecent material and hold them accountable. In this Order, however, the
Commission inexplicably fines only the licensee whose broadcast of
indecent material was the subject of a viewer's complaint, even though we
know millions of other Americans were exposed to the offending broadcast.
I cannot find anywhere in the law that Congress told us to apply indecency
regulations only to those stations against which a complaint was
specifically lodged. The law requires us to prohibit the broadcast of
indecent material, period. This means that we must enforce the law
anywhere we determine it has been violated. It is willful blindness to
decide, with respect to network broadcasts we know aired nationwide, that
we will only enforce the law against the local station that happens to be
the target of viewer complaints. How can we impose a fine solely on
certain local broadcasters, despite having repeatedly said that the
Commission applies a national indecency standard - not a local one?
The failure to enforce the rules against some stations but not others is
not what the courts had in mind when they counseled restraint. In fact,
the Supreme Court's decision in Pacifica was based on the uniquely
pervasive characteristics of broadcast media. It is patently arbitrary to
hold some stations but not others accountable for the same broadcast. We
recognized this just two years ago in Married By America. The Commission
simply inquired who aired the indecent broadcast and fined all of those
stations that did so.
In the Super Bowl XXXVIII Halftime Show decision, we held only those
stations owned and operated by the CBS network responsible, under the
theory that the affiliates did not expect the incident and it was
primarily the network's fault. I dissented in part to that case because I
believed we needed to apply the same sanction to every station that aired
the offending material. I raise similar concerns today, in the context of
the instant Order.
The Commission is constitutionally obligated to decide broadcast indecency
and profanity cases based on the "contemporary community standard," which
is "that of the average broadcast viewer or listener." The Commission has
explained the "contemporary community standard," as follows:
We rely on our collective experience and knowledge, developed through
constant interaction with lawmakers, courts, broadcasters, public interest
groups and ordinary citizens, to keep abreast of contemporary community
standards for the broadcast medium.
I am concerned that today's Order overreaches with its expansion of the
scope of indecency and profanity law, without first doing what is
necessary to determine the appropriate contemporary community standard.
The Order builds on one of the most difficult cases we have ever decided,
Golden Globe Awards, and stretches it beyond the limits of our precedents
and constitutional authority. The precedent set in that case has been
contested by numerous broadcasters, constitutional scholars and public
interest groups who have asked us to revisit and clarify our reasoning and
decision. Rather than reexamining that case, the majority uses the
decision as a springboard to add new words to the pantheon of those deemed
to be inherently sexual or excretory, and consequently indecent and
profane, irrespective of their common meaning or of a fleeting and
isolated use. By failing to address the many serious concerns raised in
the reconsideration petitions filed in the Golden Globe Awards case,
before prohibiting the use of additional words, the Commission falls short
of meeting the constitutional standard and walking the tightrope of a
restrained enforcement policy.
This approach endangers the very authority we so delicately retain to
enforce broadcast decency rules. If the Commission in its zeal oversteps
and finds our authority circumscribed by the courts, we may forever lose
the ability to protect children from the airing of indecent material,
barring an unlikely constitutional amendment setting limitations on the
First Amendment freedoms.
The perilous course taken today is evident in the approach to the
acclaimed Martin Scorsese documentary, "The Blues: Godfathers and Sons."
It is clear from a common sense viewing of the program that coarse
language is a part of the culture of the individuals being portrayed. To
accurately reflect their viewpoint and emotions about blues music requires
airing of certain material that, if prohibited, would undercut the ability
of the filmmaker to convey the reality of the subject of the documentary.
This contextual reasoning is consistent with our decisions in Saving
Private Ryan and Schindler's List.
The Commission has repeatedly reaffirmed, and the courts have consistently
underscored, the importance of content and context. The majority's
decision today dangerously departs from those precedents. It is certain to
strike fear in the hearts of news and documentary makers, and broadcasters
that air them, which could chill the future expression of constitutionally
protected speech.
We should be mindful of Justice Harlan's observation in Cohen v.
California. Writing for the Court, he observed:
[W]ords are often chosen as much for their emotive as their cognitive
force. We cannot sanction the view that the Constitution, while solicitous
of the cognitive content of individual speech, has little or no regard for
that emotive function which, practically speaking, may often be the more
important element of the overall message sought to be communicated.
Given all of these considerations, I find that today's decision, while
reaching some appropriate conclusions both in identifying indecent
material and in dismissing complaints, is in some ways dangerously off the
mark. I cannot agree that it offers a coherent, principled long-term
framework that is rooted in common sense. In fact, it may put at risk the
very authority to protect children that it exercises so vigorously.
STATEMENT OF
COMMISSIONER DEBORAH TAYLOR TATE
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Forfeiture Order; Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broadcast of the Program "Without A
Trace," Notice of Apparent Liability; Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and March 8, 2005, Notices
of Apparent Liability and Memorandum Opinion and Order
Today marks my first opportunity as a member of the Federal Communications
Commission to uphold our responsibility to enforce the federal statute
prohibiting the airing of obscene, indecent or profane language. To be
clear - I take this responsibility very seriously. Not only is this the
law, but it also is the right thing to do.
One of the bedrock principles of the Communications Act of 1934, as
amended, is that the airwaves belong to the public. Much like public
spaces and national landmarks, these are scarce and finite resources that
must be preserved for the benefit of all Americans. If numbers are any
indication, many Americans are not happy about the way that their airwaves
are being utilized. The number of complaints filed with the FCC reached
over one million in 2004. Indeed, since taking office in January 2006, I
have received hundreds of personal e-mails from people all over this
country who are unhappy with the content to which they - and, in
particular, their families - are subjected.
I have applauded those cable and DBS providers for the tools they have
provided to help parents and other concerned citizens filter out
objectionable content. Parental controls incorporated into cable and DBS
set-top boxes, along with the V-Chip, make it possible to block
programming based upon its content rating. However, these tools, even when
used properly, are not a complete solution. One of the main reasons for
that is because much of the content broadcast, including live sporting
events and commercials, are not rated under the two systems currently in
use.
I also believe that consumers have an important role to play as well.
Caregivers - parents, in particular - need to take an active role in
monitoring the content to which children are exposed. Even the most
diligent parent, however, cannot be expected to protect their children
from indecent material broadcast during live sporting events or in
commercials that appear during what is marketed to be "appropriate"
programming.
Today, we are making significant strides toward addressing the backlog of
indecency complaints before this agency. The rules are simple - you break
them and we will enforce the law, just as we are doing today. Both the
public and the broadcasters deserve prompt and timely resolution of
complaints as they are filed, and I am glad to see us act to resolve these
complaints. At the same time, however, I would like to raise a few
concerns regarding the complaints we address in these decisions.
First, I would like to discuss the complaint regarding the 6:30 p.m.
Eastern Daylight Time airing of an episode of The Simpsons. The Order
concludes that this segment is not indecent, in part because of the fact
that The Simpsons is a cartoon. Generally speaking, cartoons appeal to
children, though some may cater to both children and adults
simultaneously. Nevertheless, the fact remains that children were
extremely likely to have been in the viewing audience when this scene was
broadcast. Indeed, the marketing is aimed at children. If the scene had
involved real actors in living color, at 5:30 p.m. Central Standard Time,
I wonder if our decision would have been different? One might argue that
the cartoon medium may be a more insidious means of exposing young people
to such content. By their very nature, cartoons do not accurately portray
reality, and in this instance the use of animation may well serve to
present that material in a more flattering light than it would if it were
depicted through live video. I stop short of disagreeing with our decision
in this case, but note that the animated nature of the broadcast, in my
opinion, may be cause for taking an even closer look in the context of our
indecency analysis.
Second, our conclusion regarding the 9:00 p.m. Central Standard Time
airing of an episode of Medium in which a woman is shot at point-blank
range in the face by her husband gives me pause. While I agree with the
result in this case, I question our conclusion that the sequence
constitutes violence per se and therefore falls outside the scope of the
Commission's definition of indecency. Without question, this scene is
violent, graphically so. Moreover, it is presented in a way that appears
clearly designed to maximize its shock value. And therein lies my concern.
One of the primary ways that this scene shocks is that it leads the viewer
to believe that the action is headed in one direction - through dialogue
and actions which suggest that interaction of a sexual nature is about to
occur - and then abruptly erupts in another - the brutally violent
shooting of a wife by her husband, in the head, at point-blank range. Even
though the Commission's authority under Section 1464 is limited to
indecent, obscene, and profane content, and thus does not extend to
violent matter, the use of violence as the "punch line" of titillating
sexual innuendo should not insulate broadcast licensees from our
authority. To the contrary, the use of sexual innuendo may, depending on
the specific case, subject a licensee to potential forfeiture, regardless
of the overall violent nature of the sequence in which such sexual
innuendo is used.
* * *
Finally, I would like to express my hope and belief that the problem of
indecent material is one that can be solved. Programmers, artists,
writers, broadcasters, networks, advertisers, parents, public interest
groups, and, yes, even Commissioners can protect two of our country's most
valuable resources: the public airwaves and our children's minds. We must
take a stand against programming that robs our children of their innocence
and constitutes an unwarranted intrusion into our homes. By working
together, we should promote the creation of programming that is not just
entertaining, but also positive, educational, healthful, and, perhaps,
even inspiring.
18 U.S.C. S 1464.
See 47 C.F.R. S 73.3999; see also Public Telecommunications Act of 1992,
Pub. L. No. 102-356, 106 Stat. 949 (1992) (setting the safe harbor of 10
p.m. to 6 a.m. for the broadcast of indecent material); see also Action
for Children's Television v. FCC, 58 F. 3d 654 (D.C. Cir. 1995) (en banc)
("ACT III"), cert. denied, 516 U.S. 1072 (1996) (affirming restrictions
prohibiting the broadcast of indecent material between the hours of 6 a.m.
and 10 p.m.)
See Complaints Against Various Broadcast Licensees Regarding Their Airing
of the "Golden Globe Awards" Program, Memorandum Opinion and Order 18 FCC
Rcd 19859 (Enf. Bur. 2004), review granted, 19 FCC Rcd 4975, 4981 PP 13
and 14 (2004) ("Golden Globe Awards Order"), petitions for stay and recon.
pending. The Commission established a "safe harbor" period from 10 p.m. to
6 a.m. during which profane speech may be legally broadcast as a narrowly
tailored means of vindicating its compelling interests in assisting
parents and protecting minors, consistent with the D.C. Circuit's decision
that the same "safe harbor" period for indecent material is consistent
with the Constitution. See ACT III, 58 F.3d at 667.
44 Stat. 1172.
FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978) ("Pacifica").
Id.
Id.
Id. at 749.
See Donald F. Roberts, Ulla G. Foehr, and Victoria Rideout, Generation M:
Media in the Lives of 8-18 Year Olds (March 2005) at 12-13 (finding that
99% of children 8-18 have a television set in their home and that 68% of
children 8-18 have a television set in their bedroom).
U.S. Const., amend. I; 47 U.S.C. S 326. See also United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813-15 (2000).
See Action for Children's Television v. FCC, 852 F.2d 1332, 1344, 1340 n.
14 (1988) ("ACT I") (stating that "[b]roadcast material that is indecent
but not obscene is protected by the First Amendment; the FCC may regulate
such material only with due respect for the high value our Constitution
places on freedom and choice in what people may say and hear," and that
any "potential chilling effect of the FCC's generic definition of
indecency will be tempered by the Commission's restrained enforcement
policy.").
See Infinity Broadcasting Corporation of Pennsylvania, Memorandum Opinion
and Order, 2 FCC Rcd 2705 (1987) (subsequent history omitted) (citing
Pacifica Foundation, Memorandum Opinion and Order, 56 FCC 2d 94, 98
(1975), aff'd sub nom. Pacifica, 438 U.S. 726).
Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C.
S1464 and Enforcement Policies Regarding Broadcast Indecency, Policy
Statement, 16 FCC Rcd 7999, 8002 PP 7-8 (2001) ("Indecency Policy
Statement") (emphasis in original). In applying the "community standards
for the broadcast medium" criterion, the Commission has stated:
The determination as to whether certain programming is patently offensive
is not a local one and does not encompass any particular geographic area.
Rather, the standard is that of an average broadcast viewer or listener
and not the sensibilities of any individual complainant.
WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and Order, 15 FCC
Rcd 1838, 1841 P 10 (2000) ("WPBN/WTOM MO&O"). The Commission's
interpretation of the term "contemporary community standards" flows from
its analysis of the definition of that term set forth in the Supreme
Court's decision in Hamling v. United States, 418 U.S. 87 (1974), reh'g
denied, 419 U.S. 885 (1974). In Infinity Broadcasting Corporation of
Pennsylvania (WYSP(FM)), Memorandum Opinion and Order, 3 FCC Rcd 930
(1987) (subsequent history omitted), the Commission observed that in
Hamling, which involved obscenity, "the Court explained that the purpose
of `contemporary community standards' was to ensure that material is
judged neither on the basis of a decisionmaker's personal opinion, nor by
its effect on a particularly sensitive or insensitive person or group."
Id. at 933 (citing 418 U.S. at 107). The Commission also relied on the
fact that the Court in Hamling indicated that decisionmakers need not use
any precise geographic area in evaluating material. Id. at 933 (citing 418
U.S. at 104-05). Consistent with Hamling, the Commission concluded that
its evaluation of allegedly indecent material is "not one based on a local
standard, but one based on a broader standard for broadcasting generally."
Id. at 933.
Indecency Policy Statement, 16 FCC Rcd at 8002 P 9 (emphasis in original).
Id. at 8002-15 PP 8-23.
Id. at 8003 P 10.
Id. at 8009 P 19 (citing Tempe Radio, Inc (KUPD-FM), Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media Bur. 1997)
(forfeiture paid), and EZ New Orleans, Inc. (WEZB(FM)), Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
(forfeiture paid) (finding that the extremely graphic or explicit nature
of references to sex with children outweighed the fleeting nature of the
references).
Indecency Policy Statement, 16 FCC Rcd at 8010 P 20 (noting that "the
manner and purpose of a presentation may well preclude an indecency
determination even though other factors, such as explicitness, might weigh
in favor of an indecency finding").
See Syracuse Peace Council, Memorandum Opinion and Order, 2 FCC Rcd 5043,
5050-51 P 52 (1987) (subsequent history omitted) (eliminating the fairness
doctrine, which placed an affirmative obligation on broadcasters to cover,
and present contrasting viewpoints on, controversial issues of public
importance).
19 FCC Rcd at 4981 P 13.
ACT I, 852 F.2d at 1344 (noting that "the potentially chilling effect of
the FCC's generic definition will be tempered by the Commission's
restrained enforcement policy.").
19 FCC Rcd at 1980 P 12.
See Pacifica, 438 U.S. at 748-751; Golden Globe Awards Order, 19 FCC Rcd
at 4981-82 PP 13-16.
See, e.g., Raycom America, Inc., Memorandum Opinion and Order, 18 FCC Rcd
4186, 4187, PP 3-4 (2003); Complaint of Julian Bond, Atlanta NAACP,
Letter, 69 FCC 2d 943 (Broadcast Bur. 1978).
See Complaints Against Various Television Licensees Regarding Their
Broadcast on November 11, 2004 of the ABC Television Network's
Presentation of the Film "Saving Private Ryan," Memorandum Opinion and
Order, 20 FCC Rcd 4507, 4512-14 PP 13-18 (2005) ("Saving Private Ryan").
47 U.S.C. S 503(b)(1)(B) & D. See also 47 C.F.R. 1.80(a)(1).
47 U.S.C. S 312(f)(1).
See H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991).
Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent
Liability for Forfeiture, 16 FCC Rcd 1359, 1362 P 9 (2001).
See Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement"); see also 47 C.F.R. S 1.80(b).
Forfeiture Policy Statement, 12 FCC Rcd at 17100-01 P 27.
Effective September 7, 2004, the Commission amended its rules to increase
the maximum penalties to account for inflation since the last adjustment
of the penalty rates. See Amendment of Section 1.80 of the Commission's
Rules, Order, 19 FCC Rcd 10945, 10946 P 6 (2004).
Id.
FCC File No. EB-04-IH-0166.
See Letter from Lara Mahaney, Parents Television Council, to David H.
Solomon, Chief, Enforcement Bureau, Federal Communications Commission
(February 17, 2004). In its complaint, PTC incorrectly states that the
call sign of the station is "KBDC-TV," but it appears that the
complained-of station is Station WBDC-TV based on our review of the
videotape of the program provided by PTC.
See Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to John
Maatta, Executive Vice-President and General Counsel, The WB Television
Network (September 27, 2004).
See Letter from Arthur H. Harding, Esquire, Fleischman and Walsh, L.L.P.,
counsel for The WB Television Network, to David Brown, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission (October 6, 2004) ("October Response"); Letter
from Arthur H. Harding, Esquire, Fleischmann and Walsh, L.L.P., counsel
for the WB Television Network, to William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission (November 1, 2004).
In this scene, program participant Erik Estrada says that one of the
female guests propositioned him with "an oral compliment." The camera then
turns to a scene where the female guest in question says to Mr. Estrada:
"Wanna come inside [bleep]." Mr. Estrada responds with a shocked facial
expression. The camera then turns to a scene in which he says into the
camera: "And I said `ah you're very kind and generous, but you know what?
I'm a married man.'"
See Complaints Against Various Licensees Regarding Their Broadcast of the
Fox Television Network Program "Married By America" on April 7, 2003,
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 20191, 20194 P 10
(2004) ("Married By America NAL") (program featuring bachelor and
bachelorette parties with pixilated nudity of professional strippers met
first prong of indecency standard).
Id.
Id. (finding that "although the nudity was pixilated, even a child would
have known that the strippers were topless and that sexual activity was
being shown.").
See Indecency Policy Statement, 16 FCC Rcd at 8008 P 17 (citing cases);
see also Married by America NAL, 19 FCC Rcd at 20195 P 11; ; Entercom
Seattle License, LLC, Order on Review, 19 FCC Rcd 9069, 9073-74 P 13
(2004) ("Entercom Seattle Order on Review"), petition for recon. pending.
October Response at 2 (citing KSAZ Licenses, Inc., Memorandum Opinion and
Order, 19 FCC Rcd 15999 (2004) ("KSAZ MO&O") and Complaints Against
Various Broadcast Licensees Regarding Their Airing of the UPN Network
Program "Buffy the Vampire Slayer" On November 20, 2001, Memorandum
Opinion and Order, 19 FCC Rcd 15995 (2004) ("Buffy the Vampire Slayer
MO&O")).
See 47 C.F.R. S 73.3999.
The subject broadcast occurred prior to the September 7, 2004, effective
date of the most recent adjustment of the statutory maximum forfeiture
amount. Accordingly, the appropriate maximum statutory amount here is
$27,500. See supra P 21.
The fact that WBDC may not have originated the programming in question is
irrelevant to whether there is an indecency violation. See Review of the
Commission's Regulations Governing Programming Practices of Broadcast
Television Networks and Affiliates, Notice of Proposed Rulemaking, 10 FCC
Rcd 11951,11961, P 20 (1995) (internal quotation omitted) ("We conclude
that a licensee is not fulfilling his obligations to operate in the public
interest, and is not operating in accordance with the express requirements
of the Communications Act, if he agrees to accept programs on any basis
other than his own reasonable decision that the programs are
satisfactory.").
See Married By America NAL, 19 FCC Rcd at 20196 P 16 (proposing
forfeitures against all Fox Television Network affiliate stations that
broadcast apparently indecent material). See also Clear Channel
Broadcasting Licenses, Inc. et al., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 6773, 6779 P 16 (2004) (proposing forfeiture
against all commonly owned and operated stations that broadcast the
programming at issue, and directing an investigation into stations owned
by another licensee that broadcast the same program), vacated per consent
decree, 19 FCC Rcd 10880 (2004).
See supra P 11 and note 11.
FCC File No. EB-04-IH-0572.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to NBC Telemundo License Co. (April
8, 2005).
See Letter from F. William LeBeau, Senior Regulatory Counsel and Assistant
Secretary, NBC Telemundo License Co., to David Brown, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau (May 19, 2005)
("Response"); Letter from F. William LeBeau, Senior Regulatory Counsel and
Assistant Secretary, NBC Telemundo License Co., to David Brown, Assistant
Chief, Investigations and Hearings Division, Enforcement Bureau (June 24,
2005).
Response at 2-3.
Id at 2.
19 FCC Rcd at 20194 P 10. See also Back Bay Broadcasting, Notice of
Apparent Liability for Forfeiture, 14 FCC Rcd 3997, 3998 (Mass Media Bur.
1999) ("Back Bay NAL") (forfeiture paid) (finding broadcast indecent
despite attempt to obscure objectionable language because words remained
clearly "recognizable, notwithstanding the editing").
See Indecency Policy Statement, 16 FCC Rcd at 8008, P 17 (citing cases);
see also "Married By America" NAL, 19 FCC Rcd at 20195 P 11; Entercom
Seattle Order on Review, 19 FCC Rcd at 9073-74 P 13.
16 FCC Rcd at 8008 P 17.
Response at 8.
Id. at 7-8.
Saving Private Ryan, 20 FCC Rcd at 4512-13, P 14.
See Pacifica, 438 U.S. at 748-49 (holding that warnings are not
necessarily effective because the audience is constantly changing
stations).
See 47 C.F.R. S 73.3999.
The subject broadcast occurred after the September 7, 2004, effective date
of the most recent adjustment of the statutory maximum forfeiture amount.
Accordingly, the appropriate maximum statutory amount here is $32,500. See
supra P 21.
See supra note 48.
See supra P 11 and note 11.
FCC File No. EB-04-IH-0625.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Sherjan Broadcasting Company, Inc. (February 11, 2005) ( "LOI").
See Letter from Peter Tannenwald, Irwin, Campbell & Tannenwald, P.C., to
David Brown, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (March 14, 2005).
Id. at Attachment 2 (licensee's English-language translation of broadcast
). Also according to the licensee's translation, immediately before the
woman appears on stage, the host asks another guest, "Do you know
Juliana?" The guest states that she knows "Juliana How Bad You Are," a
popular Spanish-language song. The host replies, "Well this one is worse
than that! And we're going to present her now!" Id.
Id.
Id. at 2.
Id. at 1-2.
See, e.g., Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 19230, 19235 P 11
(2004) ("Super Bowl NAL") (finding that Super Bowl halftime show, which
displayed a bare female breast, satisfied subject matter prong of
indecency analysis) .
Id., 19 FCC Rcd at 19235 P 13 (finding that a broadcast, which showed a
performer's exposed breast, was graphic and explicit). See also Young
Broadcasting of San Francisco, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 1751, 1755 P 11 (2004) ("Young Broadcasting NAL")
(finding that a broadcast of performer's exposed penis was graphic and
explicit).
See Super Bowl NAL, 19 FCC Rcd at 19235-36, P 13 (finding that a broadcast
of performer's exposed breast was "clearly graphic," even though breast
was partially covered).
In this connection, we note that in the Super Bowl NAL, we found that the
broadcast of an exposed breast was indecent, even though it lasted less
than one second. Id.
See Indecency Policy Statement, 16 FCC Rcd at 8008 P 17 (citing cases);
see also Married By America NAL, 19 FCC Rcd at 20195 P 11; Entercom
Seattle Order on Review, 19 FCC Rcd at 9073-74 P 13.
See Pacifica, 438 U.S. at 744 (upholding the Commission's finding that the
broadcast of a comedy monologue featuring references to sexual activities
and organs was patently offensive and violated the statutory prohibition
on indecency).
See 47 C.F.R. S 73.3999.
The subject broadcast occurred after the September 7, 2004 effective date
of the most recent adjustment of the statutory maximum forfeiture amount.
Accordingly, the appropriate maximum statutory amount here is $32,500. See
supra P 21.
See Letter from David Ramos and Gloria Cardona, D'Vanguardia, to David
Solomon, Chief, Enforcement Bureau, Federal Communications Commission
(March 12, 2002); Letter from David Ramos and Gloria Cardona,
D'Vanguardia, to David Solomon, Chief, Enforcement Bureau, Federal
Communications Commission (March 2, 2002); Letter from David Ramos and
Gloria Cardona, D'Vanguardia, to David Solomon, Chief, Enforcement Bureau,
Federal Communications Commission (February 26, 2002); Letter from David
Ramos to David Solomon, Chief, Enforcement Bureau, Federal Communications
Commission (February 26, 2002); Letter from Gloria Cardona and David
Ramos, D'Vanguardia, to David Solomon, Chief, Enforcement Bureau, Federal
Communications Commission (February 22, 2002).
See Letter from Maureen F. Del Duca, Chief, Investigations and Hearings
Division, Enforcement Bureau, to Aerco (December 24, 2003) ("LOI").
FCC File Nos. EB-02-IH-0167, EB-02-IH-0198.
FCC File Nos. EB-02-IH-0167, EB-02-IH-0199.
FCC File Nos. EB-02-IH-0167, EB-02-IH-0199.
FCC File No. EB-02-IH-0258.
See Letter from John A. Borsari to Marlene H. Dortch, Secretary, Federal
Communications Commission at Exhibits 1-A -- 6-B (March 23, 2004)
("Response").
Id. at 1-5. Aerco states that several music videos, all entitled "Fatal
Fantasy 2," were broadcast between January and March 2002. Thus, Aerco
claims it cannot confirm the dates and times for the airing of the
specific videos "DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan" or "DJ Joe
-- Fatal Fantasy 2." Id. at 2-3. In regard to "Operation Sandunga," Aerco
states that it does not have any records of such a titled music video. Id.
at 4. It asserts that Aerco broadcasts programs produced by independent
producers after 10:00 p.m. and some of these broadcasts contain music
videos that would not be reflected in Aerco's program logs. Id. at 4-5.
Aerco further asserts that since these broadcasts are aired after 10:00
p.m., "Operation Sandunga" could not have been broadcast between 10:00
a.m. and 10:52 a.m., as alleged in the complaints. Id. at 5. Aerco
confirms that it broadcast the promo for "Dangerous - Fatal Fantasy 2" on
the four dates alleged in the Bureau LOI, but is unable to confirm the
broadcast times. Id. at 4.
Id. at Exhibit 7. In response to the Bureau LOI, Aerco provided a program
log for only one of the nine days mentioned in the complaints. Aerco also
provided program logs for multiple days not mentioned in the Bureau LOI.
The program logs list dates and times of program material, but provide
only partial titles of the music videos played. Thus, there are multiple
entries for a program entitled "Fatal Fantasy," which could be any of
three videos discussed in this Notice of Apparent Liability. Because of
the confusing nature of Aerco's program logs and the fact that Aerco does
not dispute the times and dates listed in the videotapes provided by the
Complainants, we will rely only on the videotapes as the basis for the
proposed forfeiture here.
Id. at 8.
Id. at 8-9.
Id. at 9-10.
Id. at 10.
This translation is based upon our review of the material at issue. Aerco
provides the following translation (the parenthetical is in Aerco's
translation):
Just barely a newborn, I soon knew where I'd come out from. Since then and
until I grew up, in the same kind of hole I always like to be. In
elementary school they called me "Mr. Hop." In junior high they called me
"Punecinco" (invented word), because that's when I got into the habit of
pleasing myself.
Response at Exhibit 1-B.
This translation is based upon our review of the material at issue. Aerco
provides the following translation:
I used to push her with my front part and with my chest far away. I used
to take her and screw her. The brassieres I used to take off, the panties
I used to take down, like in the old days, I'm giving it to you, I'm
giving it to you.
Response at Exhibit 3-B.
Id. at Exhibit 6-B (punctuation included in the original).
See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (Supreme Court
did not disturb a city's indecency ordinance prohibiting public nudity,
which listed the buttocks as among the body parts subject to the
ordinance's ban on nudity); Loce v. Time Warner Entertainment
Advance/Newhouse Partnership, 191 F.3d 256, 269 (2d. Cir. 1999) (upholding
state district court's determination that Time Warner's decision to not
transmit certain cable programming that it reasonably believed indecent
(some of which included "close-up shots of unclothed breasts and
buttocks") did not run afoul of the Constitution).
See Indecency Policy Statement, 16 FCC Rcd at 8008 P 17 (citing cases);
see also Married By America NAL, 19 FCC Rcd at 20195 P 11; Entercom
Seattle Order on Review, 19 FCC Rcd at 9073-74 P 13.
See Response at 10.
Id.
To the extent that the music videos' and the promo's use of visual images
in conjunction with lyrics to describe and depict sexual activity could be
described as innuendo rather than direct references, they are nonetheless
sufficiently graphic and explicit to render the material actionably
indecent because the sexual import of those images in conjunction with
those lyrics was "unmistakable." See Married By America NAL, 19 FCC Rcd at
20194 P 10 (proposing forfeiture for airing nudity, finding that despite
electronic blurring ("pixilation") "even a child would have known the
strippers were topless and that sexual activity was being shown"). See
also Indecency Policy Statement, 16 FCC Rcd at 8003-04 P 12; Telemundo of
Puerto Rico License Corp. (WKAQ-TV), Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 7157, 7159, P 8 (Enf. Bur. 2001) (forfeiture paid)
("Telemundo NAL").
See Response at 2-3.
Id. at 4.
Id. at 4.
Id. at 4-5.
See Entercom Sacramento License, LLC, Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 20129 P 5 (2004) (proposing a forfeiture in a case
where the licensee could not deny the broadcast occurred).
See 47 C.F.R. S 73.3999. Based on the videotape and data provided by the
Complainants, we conclude that the station aired "DJ Joe, Fatal Fantasy 2-
Feat, Trebol, Clan" between the hours of 6:00 a.m. and 10:00 p.m. on
February 2 (12:00-12:43 p.m.), 22 (5:00-6:30 p.m.), 26 (3:00-3:30 p.m.)
and 28, 2002 (2:05-2:50 p.m.); "DJ Joe, Fatal Fantasy 2-- Feat, Nejo,
Speedy" on February 22 (5:30- 6:30 p.m.), 26 (6:00 -6:30 p.m.), March 6
(10:00-10:52 a.m.), and 27 (5:45-5:48 p.m.). We also find that the station
aired "Dangerous -- Fatal Fantasy 2" on February 28 (2:05-2:50 p.m.),
March 1 (1:13-1:53 p.m.), 4 (6:50 p.m.), 5 (9:40-10:17 a.m.) and 8, 2002
(11:51 a.m.- 12:55 p.m.). We also find that the station aired "Operation
Sandunga" on March 6, 2002, between 10:00 and 10:52 a.m.
The subject broadcasts occurred prior to the September 7, 2004, effective
date of the most recent adjustment of the statutory maximum forfeiture
amount. Accordingly, the appropriate maximum statutory amount here is
$27,500. See supra P 21.
FCC File No. EB-04-IH-0260.
See Letter from complainant to the Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission March 18, 2004)
("Complaint").
According to the Complaint, the program includes the following
objectionable utterances broadcast between 8:42 and 9:32 p.m.:
8:42 p.m..: "See those, motherfucker? Gotta pay those motherfucking
notes."
8:51 p.m.: "What's my job? You stupid motherfucker, your job is to follow
me."
9:00 p.m.: "Shit it's good to be next to you."
9:04 p.m.: "there's no white bullshit with [Paul] Butterfield."
9:13 p.m.: "I'll buy some shit."
9:14 p.m.: "This is the kind of shit I buy."
9:23 p.m.: "Cocksucker Blues" (used as an on-screen Chyron to identify a
song title).
9:32 p.m.: "This poor fucker."
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to San Mateo (August 4, 2004)
("LOI").
See Letter from Marilyn R. Lawrence, General Manager, KCSM-TV/(FM), to
David Brown, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau (August 27, 2004) ("Response") at 1.
Id.
Id.
Id. San Mateo appears to refer to the Golden Globe Awards Order.
Golden Globe Awards Order, 19 FCC Rcd at 4978 P 8.
See Pacifica Foundation, 56 FCC 2d at 99.
Golden Globe Awards Order, 19 FCC Rcd at 4979 P 9.
See Indecency Policy Statement, 16 FCC Rcd at 8008 P 16 (citing Back Bay
NAL, 14 FCC Rcd at 3998, which found the broadcast of repeated uncensored
uses of the "F-Word," among other expletives, to be indecent).
See infra P 82.
See 47 C.F.R. S 73.3999.
Id. at 4981 PP 13-14.
20 FCC Rcd at 4512-14 PP 13-18.
Id. at 4512-13 PP 13-14.
See ACT III, 58 F.3d at 660-63.
Because the broadcast in question was aired prior to the release of the
Golden Globe Awards Order, our profanity finding will not factor in our
determination of any sanction in this case.
See, e.g., Pacifica, 438 U.S. at 744 (upholding the Commission's finding
that the broadcast of the comedy monologue "Filthy Words" featuring, among
other things, repeated uses of the F-Word and the S-Word was patently
offensive and violated the statutory prohibition on indecency).
San Mateo states that its arrangement with PBS required that it defer for
several months from broadcasting the program, which aired over most PBS
stations in October and November 2003. San Mateo represents that, because
its scheduling is done three months in advance of the actual airdate, "the
decision to air this series was made in November since the first episode
of the series was aired in February." Response at 1. To the extent that
San Mateo cites this circumstance to suggest that it did not have adequate
notice that the expletives contained in the program were prohibited from
broadcast prior to the Commission's issuance of the Golden Globe Awards
Order on March 18, 2004, we reject this contention. To the contrary, San
Mateo had months after the national airing of the episode at issue to
ascertain the questionable content of the program and to take steps to
ensure that it did not broadcast the repeated uses of objectionable words
at issue.
We exercise our prosecutorial discretion not to propose forfeitures based
on the multiple utterances of expletives in this case because the use of
individual expletives was not actionable under Commission precedent prior
to the Golden Globe Awards Order. See Golden Globe Awards Order, 19 FCC
Rcd at 4980 P 12. While repetition of expletives in certain scenes might
have qualified as actionable before the Golden Globe Awards Order, we
decline to establish a method of identifying multiple utterances that
applies only to pre-Golden Globe Awards Order programs.
The fact that San Mateo may not have originated the programming in
question is irrelevant to whether there is an indecency violation. See
supra note 47.
See supra note 48.
See supra P 11 and note 11.
FCC File No. EB-03-IH-0136.
See Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, to KTVI License, Inc. (December 30, 2004).
See Letter from John C. Quale, Counsel to KTVI License, Inc., to the
Investigations and Hearings Division, Enforcement Bureau (January 31,
2005), and accompanying "Response of KTVI(TV), St. Louis, Missouri to FCC
Letter of Inquiry" at 2.
Id. at 1.
These terms will be referred to collectively herein as the "S-Word."
We note that in the Golden Globe Awards Order, which was issued after the
conduct at issue in this case took place, the Commission overruled prior
staff decisions finding that broadcasts containing a single expletive were
not indecent. 19 FCC Rcd at 4980 P 12.
See Indecency Policy Statement, 16 FCC Rcd 7999, 8008 P 16 (2001) (citing
Back Bay NAL ,14 FCC Rcd at 3998, which found the broadcast of repeated
uncensored references to the "F-Word," among other expletives, to be
indecent).
Golden Globe Awards Order, 19 FCC Rcd at 4979 P 9. See also Agape
Broadcasting Foundation, Inc. (KNOM(FM)), Notice of Apparent Liability for
Forfeiture, 9 FCC Rcd 1679 (Mass Media Bur. 1999) (subsequent history
omitted) (citing licensee's decision to run explicit material unedited,
during a mid-afternoon broadcast when children were likely to be in the
audience), cited in Indecency Policy Statement, 16 FCC Rcd at 8014, P 21.
In Saving Private Ryan, 20 FCC Rcd at 4513 P 15, we found that that the
network "did not intend the broadcast of a feature film as family
entertainment, a fact clearly and explicitly stated in the introduction
that precedes the film and is repeated in the aural and visual viewer
advisory and voluntary parental code that follow each commercial break
during the broadcast. Thus, parents had ample warning that this film
contained material that might be unsuitable for children and could have
exercised their own judgment about the suitability of the language for
their children in the context of this film." Unlike Saving Private Ryan,
we find that the vulgar material here could have been edited without
materially altering the broadcast. Additionally, we disagree with the
licensee's argument that all of the complained-of material was used as a
means of expressing anger or frustration throughout the course of an
intense car chase. As a factual matter, it is not correct that all of the
material in question occurred during the scenes involving the car chase.
Multiple iterations of the "S-Word" occurred in other scenes.
See 47 C.F.R. S 73.3999.
See Saving Private Ryan, 20 FCC Rcd at 4512-14 PP 13-18.
Because the broadcast in question was aired prior to the release of the
Golden Globe Awards Order, our profanity finding will not factor in our
determination of any sanction in this case.
The subject broadcasts occurred prior to the September 7, 2004, effective
date of the most recent adjustment in the statutory maximum forfeiture
amount. Accordingly, the appropriate maximum statutory amount here is
$27,500. See supra P 21.
See, e.g., Pacifica, 438 U.S. at 744 (upholding the Commission's finding
that the broadcast of the comedy monologue "Filthy Words" featuring, among
other things, repeated uses of the S-Word was patently offensive and
violated the statutory prohibition on indecency).
We do not propose forfeitures based on each of the multiple utterances of
expletives in this case because the broadcast took place before the
Commission warned licensees that it might treat separate indecent
utterances in the same program as separate violations. See Infinity
Broadcasting Operations, Inc. (WKRK-FM), Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 6915, 6918-19, P 12 (April 3, 2003) ("WKRK NAL"),
vacated in non-relevant part, Viacom, Inc., Order and Consent Decree, 19
FCC Rcd 23100, 23107, P 10 (2004) (vacating all indecency forfeitures
against licensee's parent company but preserving the warnings in the WKRK
NAL that the Commission might propose forfeitures for discrete violations
in a single broadcast and might propose to revoke broadcast licenses for
egregious or repeat violations).
FCC File No. EB-03-IH-0460.
See Letter from Lara Mahaney, Parents Television Council to David Solomon,
Chief, Enforcement Bureau, Federal Communications Commission (August 22,
2003).
19 FCC Rcd at 4978 P 8.
Golden Globe Awards Order, 19 FCC Rcd at 4979 P 9.
Id., 19 FCC Rcd at 4980 P 12.
Id., 19 FCC Rcd at 4979 P 9.
See id., 19 FCC Rcd at 4980 P 11.
See id., 19 FCC Rcd at 4980 P 11. We note that Fox has pledged, whenever
possible, to air future live entertainment programming with a five-minute
delay. See Response at 9. While we applaud that change in Fox's practices,
it does not excuse the apparent indecency violation in this case.
Id., 19 FCC Rcd at 4981 PP 13-14.
See Saving Private Ryan, 20 FCC Rcd at 4512-14 PP 13-18.
See ACT III, 58 F.3d at 660-63
Golden Globe Awards Order, 19 FCC Rcd at 4980 P 12 (citing Pacifica
Foundation, 2 FCC Rcd at 2699).
Golden Globe Awards Order, 19 FCC Rcd at 4982 P 15.
FCC File Nos. EB-03-IH-0617, EB-04-IH-0295, EB-04-IH-0091.
See Letter from Lara Mahaney, Parents Television Council to David Solomon,
Chief, Enforcement Bureau, Federal Communications Commission (December 11,
2003). We also deny an additional complaint from PTC regarding another
segment of that same broadcast. See Letter from Lara Mahaney, Parents
Television Council, to David Solomon, Chief, Enforcement Bureau, Federal
Communications Commission (January 22, 2004) ("Second PTC Complaint"). See
note 195 infra.
According to Fox, the Fox affiliate stations located within the Eastern
and Central Time Zones broadcast the following exchange between Paris
Hilton and Nicole Richie after they walked onstage to present an award:
Paris Hilton: Now Nicole, remember, this is a live show, watch the bad
language.
Nicole Richie: Okay, God.
Paris Hilton: It feels so good to be standing here tonight.
Nicole Richie: Yeah, instead of standing in mud and cow[blocked]. Why do
they even call it "The Simple Life"? Have you ever tried to get cow shit
out of a Prada purse? It's not so fucking simple.
Fox advises that it edited the tape to remove the expletives before the
program aired on tape delay over Fox Stations in the Mountain and Pacific
time zones. See Letter from John C. Quale, Counsel to Fox Television
Stations, Inc., to Investigations and Hearings Division, Enforcement
Bureau (Jan. 30, 2004) ("Response") at 3-4, 8.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Fox Television Stations, Inc.
(January 7, 2004).
See supra note 179.
See Response at 12-13.
Id. at 13. We note, however, that even if Ms. Richie was not literally
referring to cow excrement, her use of the "S-Word" would still fall
within the subject matter prong of our indecency definition. The "S-Word"
has an excretory connotation, however it may be used. Its use invariably
invokes a course excretory image in any context.
Response at 13.
See Golden Globe Awards Order, 19 FCC Rcd at 4978 P 8; see also Pacifica
Foundation, 56 FCC 2d at 99.
See Golden Globe Awards Order, 19 FCC Rcd at 4979 P 9.
Id., 19 FCC Rcd 4980 P 12.
Id. at 4979 P 9.
See Response at 13.
19 FCC Rcd at 4979 P 10.
Response at 6.
See Golden Globe Awards Order, 19 FCC Rcd at 4980 P 11.
See Response at 8.
See Golden Globe Awards Order, 19 FCC Rcd at 4980 P 11. We note that Fox
has pledged, whenever possible, to air future live entertainment
programming with a five-minute delay. See Response at 9. While we applaud
that change in Fox's practices, it does not excuse the indecency violation
in this case.
PTC also filed a complaint concerning an exchange between musician David
Grohl and "Triumph the Insult Comic Dog," a hand puppet, during the same
program. See Second PTC Complaint. According to a partial transcript
attached to the complaint, the exchange focused on whether the puppet
would "poop" on various celebrities. The exchange also included the
phrases "kick-ass lip-singer," "sex with a dog," "singers that suck," "a
lot of crap," "my ass," and "you suck." The transcript supplied by PTC
stated that the references to pooping on someone were "slang for insults."
Id. Moreover, the word "poop" is more puerile than offensive. The other
words and phrases in question are not generally considered to be as
graphic, vulgar, and offensive as the "S-Word" or the "F-Word," and most
are fairly commonly used in a non-sexual, non-excretory manner.
Accordingly, although they may offend some people, we find that, viewed in
the context in which they were used, "poop" and the other words and
phrases in question were not patently offensive for the broadcast medium.
See, e.g., Complaints by Parents Television Council Against Various
Broadcast Licensees Regarding Their Airing of Allegedly Indecent Material,
Memorandum Opinion and Order, 20 FCC Rcd 1931, 1938, P 8 (2005) ("PTC 2")
(in context, fleeting uses of words such as "penis," "dick," "testicle,"
"vaginal," "ass," "bastard," and "bitch" not indecent). We note, however,
that in another context, such as a more graphic and explicit description
of sexual or excretory organs or activities, the use of these words might
contribute to a finding of indecency. We also conclude that these words
were not profane in this context.
See Saving Private Ryan, 20 FCC Rcd at 4512-14 PP 13-18.
See ACT III, 58 F.3d at 660-63
See Golden Globe Awards Order ,19 FCC Rcd at 4980 P 12 (citing Pacifica
Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699
(1987)). The fact that the statement in question included two expletives
is unlikely to have removed it from the former isolated use exception
under Commission precedent. The only pre-Golden Globe Awards Order
decision of which we are aware in which a forfeiture was proposed for a
single phrase or statement involved the use of multiple expletives
combined with a description of sexual activity. See LBJS Broadcasting
Company, Notice of Apparent Liability for Forfeiture, 13 FCC Rcd 20956
(1998) (forfeiture paid) (finding broadcast apparently indecent for use of
phrase "suck my dick you fucking cunt").
Golden Globe Awards Order, 19 FCC Rcd at 4982 P 15.
FCC File No. EB-03-IH-0355.
Collectively referred to as the "NYPD Blue Expletive Complaints."
The following examples illustrate the typical use of these expletives in
the episodes at issue:
1/14/03 episode (Det. Sipowitz in response to his partner's arrest by
Internal Affairs): "Alright, this is Bullshit!"
2/4/03 episode (Det. Sipowitz to street officer regarding that officer's
partner framing Sipowitz's partner): "Over time - over what - bullshit, a
beef!"
2/11/03 episode (Sipowitz speaking to a prisoner who had tried to trick
Sipowitz into believing the prisoner was getting transferred to a
different prison): "Game's been run dickhead. You ship out tomorrow. Wrong
cop."
2/18/03 episode (stated by a suspect who bragged about, but now denies,
killing his daughter): "I told people I killed Samia to try and get
respect back. She had ashamed me and my community look at me as a fool."
Det. 1: "You took credit for killing your daughter?! Bullshit!"
4/15/03 episode (Det. harassing suspect who had harassed prosecutor): "I'm
hoping this bullshit about you trying to get under ADA Haywood's skin is a
misunderstanding."
4/8/03 episode (Sipowitz, referring to a wheel-chair bound, uncooperative
witness to a murder): "and that dickhead in the wheel chair . . . threaten
him with perjury and he'll fold ."
4/29/03 episode (Det. questioning witness/suspect): "Maybe we should
clarify Daly. We drop jail time for good information - not bullshit that
wastes our time."
4/29/03 episode (Sipowitz, talking to a suspect who had recruited a youth
(who the suspect thought was a minor) to commit a crime): "He's 16
Dickhead! An adult! . . ."
5/6/03 episode (Captain to Det. who harassed suspect in 4/15 episode): "He
said you nearly assaulted his client last night."
Det: "Well, that's a bunch of bullshit."
See PTC 2, 20 FCC Rcd at 1938, P 8 (finding fleeting use of "dick" and its
variations not indecent in context presented).
See Complaints Filed By Parents Television Council Against Various
Broadcast Licensees Regarding Their Airing of Allegedly Indecent Material,
Memorandum Opinion and Order, 20 FCC Rcd 1920, 1926 P 8 (2005) ("PTC 1");
PTC 2, 20 FCC Rcd at 1938 P 8.
See PTC 1, 20 FCC Rcd at 1926, P 8 ("A number of complaints cite isolated
uses of the word "dick" and variations thereof. In context and as used in
the complained of broadcasts, these were epithets intended to denigrate or
criticize their subjects. Their use in this context was not sufficiently
explicit or graphic and/or sustained to be patently offensive.").
19 FCC Rcd at 4980 P 12.
Id.
See 47 C.F.R. S 73.3999.
See Saving Private Ryan, 20 FCC Rcd at 4512-14 PP 13-18.
See ACT III, 58 F.3d at 660-63.
See Golden Globe Awards Order, 19 FCC Rcd at 4980 P 12 (citing Pacifica
Foundation, Inc., 2 FCC Rcd at 2699).
Golden Globe Awards Order, 19 FCC Rcd at 4982 P 15.
FCC File No. EB-05-IH-0007.
In commenting on the strategy employed by the fellow contestant, Ms.
Tanner stated: "I knew he was a bullshitter from Day One." The
interviewer, Julie Chen, recognized the inappropriateness of the language,
stating: "I hope we had the cue ready on that one . . . . We can't say
that word . . . . There is a delay."
Golden Globe Awards Order, 19 FCC Rcd at 4978 P 8.
Id., 19 FCC Rcd at 4980 P12.
Id., 19 FCC Rcd at 4979 P 9.
See 47 C.F.R. S 73.3999.
See Saving Private Ryan, 20 FCC Rcd at 4512-14 PP 13-18.
See Golden Globe Awards Order, 19 FCC Rcd at 4982 P 15.
Id.
FCC File No. EB-05-IH-0351.
The Commission received two complaints about this program. Neither
complaint identified the specific broadcast station on which the program
aired. However, we note that the program aired on the ABC Television
Network and that both complaints were filed by individuals with addresses
within the Washington, D.C. metropolitan area.
Because this scene aired prior to 10 p.m., it falls within the scope of
our indecency regulation.
FCC File No. EB-05-IH-0049.
The following dialogue occurs:
Karen: "Hey, hey come here, one more thing come here."
Grace: "Will already adjusted them."
Karen: "I wasn't adjusting them."
NBC Telemundo License Co., Memorandum Opinion and Order, 19 FCC Rcd 23025,
23027 P 7 (2004) ("Coupling MO&O") (denying complaints about sexual
references during the program "Coupling").
FCC File Nos. EB-05-IH-0515, EB-05-IH-0570.
The complainant also generally alleges that "Two and a Half Men" episodes
are "raunchy" with "a lot of talk about `humping.'" In order for us to
process an indecency complaint, the complaint must identify a specific
broadcast containing allegedly indecent material. We cannot prosecute
complaints about programs in general. The First Amendment to the United
States Constitution and section 326 of the Act prohibit the Commission
from censoring program material and from interfering with broadcasters'
freedom of expression. See 47 U.S.C. S 326. Moreover, we previously
rejected complaints regarding an episode of the program "Will and Grace"
that made similar allegations. See KSAZ MO&O, 19 FCC Rcd at 16001, P6.
FCC File No. EB-05-IH-0257.
FCC File No. EB-05-IH-0314.
413 U.S. at 24.
Id. at 29.
Indecency Policy Statement, 16 FCC Rcd at at 8003 P 10.
FCC File No. EB-04-IH-0081.
Indecency Policy Statement, 16 FCC Rcd at 8008, P 17 (stating that
"[r]epetition of and persistent focus on sexual or excretory material have
been cited consistently as factors that exacerbate the potential
offensiveness of broadcasts").
See Saving Private Ryan, 20 FCC Rcd at 4513 P 14 (noting that "[i]n
short, the vulgar language here was not gratuitous and could not have been
deleted without materially altering the broadcast").
See King Broadcasting Co. (KING-TV), Memorandum Opinion and Order, 5 FCC
Rcd 2971, P 13 (1990) (finding that although a program dealt explicitly
with teenage sexual issues and included very graphic sex organ models,
"the material presented was clinical or instrumental in nature and not
presented in a pandering, titillating or vulgar manner"); see also
Indecency Policy Statement, 16 FCC Rcd at 8011-12 P 21 (citing to staff
decisions in which episodes of the "Oprah Winfrey Show" and "Geraldo
Rivera Show" were found not indecent).
Id., 16 FCC Rcd at 8010 P 20.
FCC File No. EB-05-IH-0223.
The photographic stills and text of the advertisement can be found at
http://www.brennancenter.org/programs/downloads/buyingtime_2004/STSUPCT_IL_DPIL_KARMEIER_CHILDREN.pdf.
The ad begins with a picture of a schoolyard through a chain-link fence,
then shows a blurred image of a home, then superimposes a copy of the
judicial decision over the home, then adds a picture of Judge Karmeier,
and concludes with a picture of a jail cell, with Judge Karmeier's picture
superimposed upon it. The narrator states:
He used candy to lure the children into the house. Once inside, the three
children were sexually molested. A four-year old girl raped. Her brothers-
sodomized. A Belleville man was arrested and convicted for the crime after
trying to develop pictures of the abuse. Despite prosecutor's objections,
Judge Lloyd Karmeier gave him probation, saying "The court should grant
leniency..." Another case where Karmeier let a violent criminal out into
the community. Lloyd Karmeier -- the wrong choice for Supreme Court. Paid
for by the Democratic Party of Illinois.
See WGBH Educational Foundation, Memorandum Opinion and Order, 69 FCC 2d
1250, 1253-54 (1978) ("WGBH MO&O") (finding that offensive language,
including expletives, does not fit within the established definition of
obscenity).
413 U.S. at 24.
Id. at 29.
Id. at 23-24. See Roth, 354 U.S. 476; but see Petition for Declaratory
Ruling Concerning Section 312(A)(7) of the Communications Act, Declaratory
Ruling, 9 FCC Rcd. 7638 (1994), reversed on other grounds sub nom Becker
v. FCC, 95 F.3d 75 (1996) (finding that campaign advertisements containing
graphic abortion imagery were, in context, part of important political
debate and thus were not indecent) ("1994 Declaratory Ruling").
Id. at 7643 (depicting dead or aborted and bloodied fetuses in campaign
advertisements was graphic, but not indecent).
Id.
See Indecency Policy Statement, 16 FCC Rcd at 8011 P 21.
Because we find that the advertisement is not indecent, we need not decide
whether the Commission may propose forfeitures against licensees that
broadcast indecent political advertisements outside of the safe harbor.
See generally Becker v. FCC, 95 F.3d 75 (D.C. Cir. 1996).
FCC File No. EB-05-IH-0394.
See Golden Globe Awards Order, 19 FCC Rcd at 4978 P 8; see also Pacifica
Foundation, 56 FCC 2d at 99.
Golden Globe Awards Order, 19 FCC Rcd at 4981 PP 13-14.
Id. at 19 FCC Rcd at 4980 P 12 (citing Tallman v. United States, 465 F.2d
282, 285 (7^th Cir. 1972)).
See supra P 19.
FCC File No. EB-05-IH-0316.
FCC File No. EB-05-IH-0317.
FCC File No. EB-05-IH-0385.
FCC File No. EB-04-IH-0459.
FCC File No. EB-05-IH-0318.
FCC File No. EB-05-IH-0421.
FCC File No. EB-05-IH-0428.
FCC File No. EB-05-IH-0420.
FCC File No. EB-04-IH-0422.
FCC File No. EB-05-IH-0423.
FCC File No. EB-05-IH-0696.
FCC File No. EB-05-IH-0417.
The allegations of obscenity concern, specifically, the phrases "up
yours," "hell," "get your ass out here," "I gave you the damn keys," "I
was holding the damn flashlight," "my Mom's been wiping his ass," "kiss my
ass," "his parents would fire his ass," and "either that or a pissed-off
ex-employee."
413 U.S. at 24.
Id. at 29.
See WGBH MO&O, 69 FCC 2d at 1253-54 (finding that offensive language,
including expletives, does not fit within the established definition of
obscenity).
See supra P 193(c), (e), and (j).
See supra P 193(a)-(c), (e)-(j), (l).
See supra P 193(d).
See supra P 193(k).
See supra note 97.
See PTC 1, 20 FCC Rcd at 1926, P 8 (finding that, in context, fleeting
uses of words including "bitch" and "ass" not sufficiently explicit or
graphic to support a finding of patent offensiveness); PTC 2, 20 FCC Rcd
at 1938 P 8 (finding that, in context, words including "hell," "damn,"
"pissed," "bitch," not sufficiently explicit or graphic to support a
finding of patent offensiveness). We note that, in contrast, in Golden
Globe Awards, 19 FCC Rcd at 4979 P 9, we found that a single use of the
"F-Word" during the live broadcast of an awards ceremony was explicit and
graphic because "its use invariably invokes a coarse sexual image."
See supra P 18.
See PTC 1, 20 FCC Rcd at 1926, P 8 (finding that use of the term "ass" was
not indecent in context); PTC 2, 20 FCC Rcd 1938, P 8 (finding that
broadcast references to "hell," "damn," "bitch," and "pissed" were not
indecent).
Id. (finding that several words, including "pissed," were not profane in
context).
FCC File No. EB-05-IH-0084.
Young Broadcasting NAL, 19 FCC Rcd at 1754 P 9 (finding that broadcast
material that showed a male performer's genitalia satisfied the subject
matter prong of the indecency analysis).
See Coupling MO&O, 19 FCC Rcd at 23027 P 7.
Id.
Indecency Policy Statement, 16 FCC Rcd at 8003 P 10.
FCC File No. EB-05-IH-0277.
See supra P 12.
See PTC 2, 20 FCC Rcd at 1938 P 8 (in context, words "dick," "hell,"
damn," "orgasm," "penis," "testicles," "breast," "nipples," "can,"
"pissed," "crap," "bastard," and "bitch" were not sufficiently explicit or
graphic to be patently offensive).
See PTC 1, 20 FCC Rcd at 1926-27, PP 7-9.
FCC File No. EB-05-IH-0465.
FCC File No. EB-05-IH-0365.
See Young Broadcasting NAL, 19 FCC Rcd at 1754 (finding that a broadcast
of performer's exposed penis satisfies subject matter prong of indecency
analysis).
Id. See also Super Bowl NAL, 19 FCC Rcd at 19235 (finding that a broadcast
of performer's breast was graphic and explicit).
See Syracuse Peace Council, 2 FCC Rcd at 5050-51 P 52 (eliminating the
fairness doctrine, which placed an affirmative obligation on broadcasters
to cover, and present contrasting viewpoints on, controversial issues of
public importance).
19 FCC Rcd at 1752.
Id. at 1756-57. Noting the comments of off-camera employees urging the
performers to conduct a nude demonstration, and the partially off-camera
demonstration to the show's hosts, the Commission found that the display
was pandering, titillating and shocking, notwithstanding the licensee's
precautions to prevent such a display. Id. at 1757.
FCC File No. EB-05-IH-0041.
See Complaint dated September 8, 2004.
Compare Married By America, 19 FCC Rcd at 20195, P 12 (finding material
to be sustained where scene at issue lasted approximately 6 minutes).
FCC File No. EB-05-IH-0212.
See supra note 97.
See PTC 2, 20 FCC Rcd at 1938 P 9 (finding that a rudimentary depiction of
a cartoon boy's buttocks was fleeting, and, in context, was not
sufficiently graphic or explicit, or sustained, to rise to the level of
being patently offensive).
Indecency Policy Statement, 16 FCC Rcd at 8003 P 10.
FCC File No. EB-05-IH-0032.
FCC File No. EB-05-IH-0463.
The complaint states that the husband "unzips his pants" before shooting
his wife, but our review of the videotape shows that the husband appears
to simply remove a handgun from the area of his waist. No unzipping of
pants is shown or heard during the scene.
See Indecency Policy Statement, 16 FCC Rcd at 8000 P 4 (noting that "in
addition, the [Pacifica] Court quoted the Commission's definition of
indecency with apparent approval. The definition, "language or material
that, in context depicts or describes, in terms patently offensive as
measured by contemporary community standards for the broadcast medium,
sexual or excretory organs," has remained substantially unchanged since
the time of the Pacifica decision") (internal citations omitted).
See Violent Television Programming and Its Impact on Children, Notice of
Inquiry, 19 FCC Rcd 14394 (2004).
NAL Account Number 200632080007, FRN No. 0014139422, Facility ID No.
26231.
NAL Account Number 200632080008, FRN No. 0003756897, Facility ID No.
60165.
NAL Account Number 200632080010, FRN No. 0003732435, Facility ID No. 4077.
NAL Account Number 200632080011, FRN No. 0002833267, Facility ID No.
30576.
NAL Account Number 200632080012, FRN No. 0001545185, Facility ID No.
58912.
NAL Account Number 200632080089, FRN No. 0003476009, Facility ID No.
35693.
See 47 C.F.R. S 1.1914.
Consistent with section 503(b) of the Act and consistent Commission
practice, for the purposes of the forfeiture proceeding initiated by each
NAL in this Order, the only party or parties to such proceeding will be
the licensee or licensees specified above.
U.S. Const., amend. I.
Congress has specifically forbidden the broadcast of obscene, indecent or
profane language. 18 U.S.C. S 1464. It has also forbidden censorship. 47
U.S.C. S 326.
See, e.g., N.Y. v. Ferber, 458 U.S. 747, 756-57 (1982).
See FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978) (emphasizing the
"narrowness" of the Court's holding); Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("ACT I") ("Broadcast material
that is indecent but not obscene is protected by the [F]irst
[A]mendment.").
See Brief for Petitioner, FCC, 1978 WL 206838 at *9.
ACT I, supra note 4, at 1344 ("[T]he FCC may regulate [indecent] material
only with due respect for the high value our Constitution places on
freedom and choice in what the people say and hear."); Id. at 1340 n.14
("[T]he potentially chilling effect of the FCC's generic definition of
indecency will be tempered by the Commission's restrained enforcement
policy."). See also Complaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005, Notices of Apparent Liability
and Memorandum Opinion and Order, FCC 06-17 at note 11 (rel. March 15,
2006).
See, e.g., In re Sagittarius Broadcasting Corporation, Memorandum Opinion
and Order, 7 FCC Rcd 6873, 6876 (1992) (subsequent history omitted).
See Pacifica Found., 438 U.S. at 748-49 (recognizing the "uniquely
pervasive presence" of broadcast media "in the lives of all Americans").
In today's Order, paragraph 10, the Commission relies upon the same
rationale.
See Complaints Against Various Licensees Regarding Their Broadcast of the
Fox Television Network Program "Married by America" on April 7, 2003,
Notice of Apparent Liability for Forfeiture,19 FCC Rcd 20191, 20196 (2004)
(proposing a $7,000 forfeiture against each Fox Station and Fox Affiliate
station); reconsideration pending. See also Clear Channel Broad. Licenses,
Inc., 19 FCC Rcd 6773, 6779 (2004) (proposing a $495,000 fine based on a
"per utterance" calculation, and directing an investigation into stations
owned by other licensees that broadcast the indecent program). In the
instant Omnibus Order, however, the Commission inexplicably fines only the
licensee whose broadcast of indecent material was actually the subject of
a viewer's complaint to the Commission. Id. at P 71.
See Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability, 19 FCC Rcd 19230 (2004).
In re Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC
Rcd 5022, 5026 (2004).
In re Complaints Against Broadcast Licensees Regarding Their Airing of the
"Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd
4975 (2004); petitions for stay and reconsideration pending.
In the Matter of Complaints Against Various Television Licensees Regarding
Their Broadcast on November 11, 2004, of the ABC Television Network's
Presentation of the Film, "Saving Private Ryan," Memorandum Opinion and
Order, 20 FCC Rcd 4507, 4513 (2005) ("Deleting all [indecent] language or
inserting milder language or bleeping sounds into the film would have
altered the nature of the artistic work and diminished the power, realism
and immediacy of the film experience for viewers"); See also Peter
Branton, Letter by Direction of the Commission, 6 FCC Rcd 610 (1991)
(concluding that repeated use of the f-word in a recorded news interview
program not indecent in context).
In the Matter of WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd 1838
(2000).
403 U.S. 15 (1971).
Id. at 26 ("We cannot indulge the facile assumption that one can forbid
particular words without also running a substantial risk of suppressing
ideas in the process").
See 18 U.S.C. S 1464.
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Federal Communications Commission FCC 06-17
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Federal Communications Commission FCC 06-17
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